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View Full Version : RKBA: What do you see changing?


Major Miner II
02-13-2006, 11:47 AM
The Federal Constitution guarantees, country wide, the right to keep and bear arms. No single state can assuage the federal constitution arbitrarily.

So what will adding it to the constitution of California change?

Enquiring minds! ;)

grammaton76
02-13-2006, 12:39 PM
Actually, something I just learned last night over on sksboards - the second amendment says that the federal government can't infringe upon the RKBA. However, the states are free to do so all they want.

Now, bear in mind that the various bans on machine guns, etc that have come down the pipe are in defiance of the second amendment - but the states are within their rights to defy the federal Second, as long as it's not the feds doing it.

Adding the Second to the California constitution would replicate the wording at the state level and thus give lawsuits against anti-gun legislation a "constitutional crowbar" to use to rip them apart. Because the present Federal amendment means nothing to states.

C.G.
02-13-2006, 12:43 PM
The Federal Constitution guarantees, country wide, the right to keep and bear arms. No single state can assuage the federal constitution arbitrarily.
;)

Wrong. The second amendment was not included in the California constitution when California was allowed to join the Union, and as such takes precedence.

Matt-man
02-13-2006, 12:46 PM
1. It is explicit: "The inalienable right to defend life and liberty as set forth in Article I, Section 1 of the California Constitution includes the fundamental right of each person to keep and bear arms for the defense of self, family and home. This right shall not be infringed."

2. Strict scrutiny: "All State government action regulating the right of law-abiding persons to acquire and possess arms for the defense of self, family and home shall be subject to strict scrutiny, in the same respect as the freedoms of speech and of the press."

On strict scrutiny, from this page (http://www.answers.com/topic/strict-scrutiny):

"Strict scrutiny is the most rigorous form of judicial review. The Supreme Court has identified the right to vote, the right to travel, and the right to privacy as fundamental rights worthy of protection by strict scrutiny. In addition, laws and policies that discriminate on the basis of race are categorized as suspect classifications that are presumptively impermissible and subject to strict scrutiny.

Once a court determines that strict scrutiny must be applied, it is presumed that the law or policy is unconstitutional. The government has the burden of proving that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result."

mdimeo
02-13-2006, 1:03 PM
Actually, something I just learned last night over on sksboards - the second amendment says that the federal government can't infringe upon the RKBA. However, the states are free to do so all they want.


This was more or less true at the time it was created. The bill of rights were mostly aimed at restraining federal power. For example, several states had established churches at the time the BoR was ratified; the first amendment was not seen as a barrier to this.

The usual counterargument is that the RKBA is one of the "priveleges and immunities" of citizens that the states can't make any law to abridge according to Amendment 14. Among other things, this was meant to keep states from enforcing their racially-motivated gun laws.

The first clause of amendment 14 is often viewed as applying the bill of rights to the states; the Bor didn't when it was signed.

-m@

C.G.
02-13-2006, 1:04 PM
1. It is explicit: "The inalienable right to defend life and liberty as set forth in Article I, Section 1 of the California Constitution includes the fundamental right of each person to keep and bear arms for the defense of self, family and home. This right shall not be infringed."

2. Strict scrutiny: "All State government action regulating the right of law-abiding persons to acquire and possess arms for the defense of self, family and home shall be subject to strict scrutiny, in the same respect as the freedoms of speech and of the press."

On strict scrutiny, from this page (http://www.answers.com/topic/strict-scrutiny):

"Strict scrutiny is the most rigorous form of judicial review. The Supreme Court has identified the right to vote, the right to travel, and the right to privacy as fundamental rights worthy of protection by strict scrutiny. In addition, laws and policies that discriminate on the basis of race are categorized as suspect classifications that are presumptively impermissible and subject to strict scrutiny.

Once a court determines that strict scrutiny must be applied, it is presumed that the law or policy is unconstitutional. The government has the burden of proving that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result."

Somehow I must have the wrong Constitution. I find this in Article I, section I:

ARTICLE 1 DECLARATION OF RIGHTS


SECTION 1. All people are by nature free and independent and have
inalienable rights. Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy.

Matt-man
02-13-2006, 3:43 PM
Sorry, should have been more clear. The text that I quoted is from the proposed amendment.

Major Miner II
02-13-2006, 7:23 PM
Wrong. The second amendment was not included in the California constitution when California was allowed to join the Union, and as such takes precedence.
This has nothing to do with the California Constitution. It has to do with the fact that the US Consitution, the Supreme Law of the land, states the rights of the people quite clearly.

And if you want further proof of it, you only have to look as far as the 10th amendment, also known as the amendment the pro-life groups stock all of their hopes and dreams on:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

But then, this is all basic civics. The prohibition of slavery applies to every state regardless of their laws. The right to due process in matters of search and seizure (ie warrants) apply to every state regardless of local laws.

Of course, when it comes to granting freedoms, the states can choose to be more free, just as they can choose to be more restrictive when it comes to laws of compliance.

I just don't see how adding this to the California Constitution is going to change anything, and I'm wondering if there is something that I've missed.

jnojr
02-13-2006, 7:27 PM
Actually, something I just learned last night over on sksboards - the second amendment says that the federal government can't infringe upon the RKBA. However, the states are free to do so all they want.

This is exactly right. States are only bound by amendments protected under the Fourteenth Amendment, and no SCOTUS case has held that the Second is so protected.

Besides... unless someone is one of the kooks who believes that the RKBA amendment is something that's really horrible, why not sign it? Even if you think it's unnecessary, redundant, "won't do any good", etc... why not just sign?

Major Miner II
02-13-2006, 7:32 PM
This is exactly right. States are only bound by amendments protected under the Fourteenth Amendment, and no SCOTUS case has held that the Second is so protected.

Besides... unless someone is one of the kooks who believes that the RKBA amendment is something that's really horrible, why not sign it? Even if you think it's unnecessary, redundant, "won't do any good", etc... why not just sign?
"Just do it" isn't an argument to do anything.

And where are you guys getting this 14th Amendment info.

I'd love to read the case law and decisions on it.

FreedomIsNotFree
02-13-2006, 9:52 PM
The Bill of Rights are non-negotiable. They apply to EVERY American citizen regardless of where, which State, they reside. The whole problem with the current gun issue is this......the SCOTUS has never ruled on IF the 2nd Amendment is an INDIVIDUAL right or NOT. Of course, we believe it does apply to the individual as every other Amendment in the Bill of Rights applies to the individual except the 10th.

Gun grabbers think the 2nd Amendment applies only to the individual within the context of a "WELL REGULATED MILITIA", meaning the state must sponsor the ownership in some fashion.

Until the SCOTUS lays down the law on this issue specifically, the debate will continue in this country. If the SCOTUS comes out and says "YES", the 2nd Amendment applies to the INDIVIDUAL you will see lots change....even in CA and other gun grabbing states. States cant pick and choose which Amendments they want to follow. Sorry.

This leads me to my next point.....everyone in CA is aware of the recent handgun ban in SF. This was actually a blessing in disguise. Many in the know anticipated the idiotic voting of San Franciscans...why....because it would supply gun owners with a clear cut case on the 2nd Amendment. No convoluted issues...etc..etc..etc....that is part of the reason the 2nd Amendment questions was never been answered....never a clear cut case to address. The SCOTUS takes cases with clear questions in which different courts have ruled differently...hence...the need for clarification.

Now you see SF backing off their recently passes law....why....because they know NOW after Handgun Control Inc....brady....etc..etc...told them they were handing us a victory....that is the last thing they want to do. They would rather keep the issue out of the SCOTUS because they know they will lose. They would rather keep the issue convoluted so each state can continue to act differently on the issue. Its just a matter of time until the proper case reaches SCOTUS.

Unitl then, we will do what we can to abide by these ridiculous laws and at the same time....take advantage of any loopholes in our favor. Do the gun grabbers do any less....I think NOT.

FreedomIsNotFree
02-13-2006, 10:00 PM
This is exactly right. States are only bound by amendments protected under the Fourteenth Amendment, and no SCOTUS case has held that the Second is so protected.

Besides... unless someone is one of the kooks who believes that the RKBA amendment is something that's really horrible, why not sign it? Even if you think it's unnecessary, redundant, "won't do any good", etc... why not just sign?

I will sign anything that will let the politicians know we cherish our right to bear arms. Even if that statement means little in the long run....it may put at least a few politicians on notice....it definitely cant hurt. I just think it is not wise to make people think it will change much in CA either way...it wont. Not until the SCOTUS takes up the issue which they have NOT done to date. They have not rules one way or the other.......nice to know we have the court stacked at this time......timing is EVERYTHING.

That being said...STATES are bound by ALL Amendments. They dont pick and choose which to follow. For example.....a State can not deny freedom of speech nor freedom of religion. A state can not decide to levy cruel and unusual punishment. States must follow the Constitution. Period.

In all matters NOT covered by the Amendments, 1 through 9, it is left up to the states. Last time I checked the Right to Bear Arms was the 2nd Amendment.

jnojr
02-14-2006, 11:23 AM
The Bill of Rights are non-negotiable. They apply to EVERY American citizen regardless of where, which State, they reside.

Unfortunately, this is a situation where "might makes right"... if you exercise that guaranteed, inalienable, non-negotiable right in an "unacceptable" way, you will go to prison. Therefore, you do not have a guaranteed, inalienable, non-negotiable right to keep and bear arms.

Until we reach a critical mass of people willing to throw out our current government and replace it with one actually based on and respectful of the Constitution, that's the way it is. And, of course, anyone proposing such will be a traitor, terrorist, etc... until and unless they win, in which case they become patriots and freedom fighters.

FreedomIsNotFree
02-14-2006, 3:51 PM
Unfortunately, this is a situation where "might makes right"... if you exercise that guaranteed, inalienable, non-negotiable right in an "unacceptable" way, you will go to prison. Therefore, you do not have a guaranteed, inalienable, non-negotiable right to keep and bear arms.

Until we reach a critical mass of people willing to throw out our current government and replace it with one actually based on and respectful of the Constitution, that's the way it is. And, of course, anyone proposing such will be a traitor, terrorist, etc... until and unless they win, in which case they become patriots and freedom fighters.

It may sound naive, but I cant wait for the SPOTUS to take on the 2nd Amendmend issue. Not putting all of my eggs in that basket, but a clear decision on an INDIVIDUALS right to bear arms would clear up a lot of this mess.

I'm relatively sure there would continue to be some regulation in terms of firearm ownership, just as there are limitations to the 1st Amendment, but again, this would clear up a lot of this.