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Rums
07-25-2006, 1:01 AM
But if our right to bear arms is in the constitution, and it makes no mention of restriction, couldn't state gun laws be considered unconstitutional? Its 1 am, so if I'm not making any sense its because I'm tired. It just seems to me that national restriction should be instituted, not state restriction.

SemiAutoSam
07-25-2006, 1:02 AM
But if our right to bear arms is in the constitution, and it makes no mention of restriction, couldn't state gun laws be considered unconstitutional? Its 1 am, so if I'm not making any sense its because I'm tired. It just seems to me that national restriction should be instituted, not state restriction.

10th amdt might have something to do with it ?

C.G.
07-25-2006, 1:19 AM
[quote=Rums]But if our right to bear arms is in the constitution, and it makes no mention of restriction, couldn't state gun laws be considered unconstitutional?quote]

Unfortunately, no.

50 Freak
07-25-2006, 1:58 AM
I believe the way the US Supreme Court currently sees it right now (and currently is the magic word as the Consitution is seen as a living document, meaning it is constantly changing to fit the current trends). Which is bunch of bull. The Constitution is a written document that lays down certain rights not to be triffled with (strict constitutionist view)

Anyways, the way the US Supreme Court inteprets the 2nd amendment as the "right to keep an bear arms" is applicable to the states rights to maintain a militia. They do not see it as a individual's rights, but states rights. And also, the state is given to the right to limit what it sees fit in the way of gun legislation.

Hence. As it stands right now. No, the states are not violating the Constitution.

Librarian
07-25-2006, 11:10 AM
In addition to what 50freak wrote, the courts have historically ruled that the amendments are a check on the action of the Federal government only. There's an argument that the 14th Amendment applied all of the others to the states as well - generally termed 'incorporation' - but that has not yet been settled. It seems some of the other Amendments, e.g. 5th, apply to states, but not yet the 2nd.

vonsmith
07-25-2006, 1:53 PM
I believe the way the US Supreme Court currently sees it right now (and currently is the magic word as the Consitution is seen as a living document, meaning it is constantly changing to fit the current trends). Which is bunch of bull. The Constitution is a written document that lays down certain rights not to be triffled with (strict constitutionist view)

Anyways, the way the US Supreme Court inteprets the 2nd amendment as the "right to keep an bear arms" is applicable to the states rights to maintain a militia. They do not see it as a individual's rights, but states rights. And also, the state is given to the right to limit what it sees fit in the way of gun legislation.

Hence. As it stands right now. No, the states are not violating the Constitution.
What about laws like the 1994 AWB? That was a federal restriction, not a state restriction. Yes?


=vonsmith=

SemiAutoSam
07-25-2006, 1:59 PM
What about laws like the 1994 AWB? That was a federal restriction, not a state restriction. Yes?


=vonsmith=

Yes it was federal but it also carried over to all 50 states. and don't forget the california constitution does not have a 2Amd like provision 45 or so states do but back in 1849 california (IMO) took it for granted that that was one right that would always be there and didnt bother to put anything in place along the lines of the Federal 2A.

Librarian
07-25-2006, 2:28 PM
What about laws like the 1994 AWB? That was a federal restriction, not a state restriction. Yes?=vonsmith=Looks puzzling, but I think because they put it into 18 USC 922, along with the FFL requirements, it was consitutionally viewed as permissible regulation. (Besides being idiotic, it was toothless; had Congress been serious - but still idiotic - they would have done something like the Australian buyback.)

I'm in the 'not much regulation' camp, not the 'no regulation' camp. But see my .sig...

Rascal
07-25-2006, 8:11 PM
I believe the way the US Supreme Court currently sees it right now (and currently is the magic word as the Consitution is seen as a living document, meaning it is constantly changing to fit the current trends). Which is bunch of bull. The Constitution is a written document that lays down certain rights not to be triffled with (strict constitutionist view)

Anyways, the way the US Supreme Court inteprets the 2nd amendment as the "right to keep an bear arms" is applicable to the states rights to maintain a militia. They do not see it as a individual's rights, but states rights. And also, the state is given to the right to limit what it sees fit in the way of gun legislation.

Hence. As it stands right now. No, the states are not violating the Constitution.
This is the interpretation of the 9th circuit court of appells, and not the U.S. Supreme court. SCOTUS has not made a rulling on the 2nd amendment, and are not likely to any time in the near future.

xenophobe
07-25-2006, 9:21 PM
The Bill of Rights and Constitution protect your rights in an interesting way.

Instead of defining what you are allowed to do or may be allowed to have in a restrictive type of way, it does this by denying the Federal government the power to do certain things. It doesn't grant you the right to Free Speech, allow you to own guns, let the government commander your property, or tell you that you have the right to privacy, etc... The BOR tells the government what it MAY NOT do.

That being said, the Bill of Rights, by charter, was not applicable to state governments until the 14th Amendment. The 14thA forces the states to abide by the BOR, and allows for the state to adjust compliance by due process of the law.

States have their own constitutions and 'bill of rights' in the form of clauses to their Constitutions, or unique Bill of Rights of their own. California's 'Bill of Rights' are the first sections incorporated into the Constitution and do not include a provision for a 'right to keep and bear arms'.

That is why State laws regarding the restriction or banning of certain types of firearms have not been stricken Unconstitutional. The State of California does not have RKBA and the Bill of Rights allows the state to modify these rights with legislation introduced 'by the people'.