The Tenth Amendment

[bkz81]

10th Amendment-

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.

The Second Amendment is clearly outside of individual State's rights yet each State picks and chooses which gun rights to allow and sometimes outright ban. Why is there no lawsuit concerning this basic interpretation of the Constitution concerning California's or any other State's assault weapon ban, high capacity magazine ban, handgun safety roster, etc.?

[Cokebottle]

Because the 2nd was not incorporated against the states under the 14th until MacDonald vs Chicago.
Now it is a matter of slowly chipping away at the restrictive states using that ruling as a basis.

[bkz81]

Is any group currently pursuing legal means to present McDonald vs. Chicago as case law in either State or Federal court? Although I agree with the 14th the 10th should have dissolved any attempt to abridge the 2nd IMHO.

[fiddletown]

Originally Posted by bkz81

Is any group currently pursuing legal means to present McDonald vs. Chicago as case law in either State or Federal court? Although I agree with the 14th the 10th should have dissolved any attempt to abridge the 2nd IMHO.

The NRA, the Second Amendment Foundation, Calguns Foundation, and others are actively engaged in RKBA litigation. There are perhaps 70 RKBA lawsuits around the country in federal court in various stages of litigation. Litigation takes a lot of time and is very expensive, so your financial support of these groups could be very helpful.

The reality is that the principle that constitutionally protected rights are subject to limited governmental regulation is well established.

So to begin to understand how and to what extent courts are likely to find regulation of the rights protected by the Second Amendment to be constitutionally acceptable, we need to understand the process, standards and applicable case law. And that will be evolving for some time to come.

1. In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.
   
   
2. There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.
   
   
3. The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.
   
   
4. Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.
   
   
5. Second Amendment jurisprudence is still in its infancy. Until Heller just five years ago, it was still in doubt whether the Second Amendment would be found to describe an individual or collective right. Until McDonald just three years ago, the law was that the Second Amendment did not apply to the States (United States v. Cruikshank, 92 U.S. 542 (1876)). So the scope and extent of permissible regulation of rights described by the Second Amendment is still unclear.
   
   
6. So in fact the reality is that rights protected by the Constitution may nonetheless be subject to some limited regulation. Second Amendment jurisprudence will need to mature over time as these sorts of issues get litigated.

[retiredAFcop]

The 10th Amendment has been dead for about 150 years (and sadly, it was the Republicans who drove the first nail in its coffin).

Where is the constitutional authority for the federal government to regulate 3/4s of what it regulates, or do 3/4s of what it does?


"Interstate Commerce" and "14th Amendment" are arguments that seem to be used to nullify the 10th on a regular basis.

[wildhawker]

Well, the 14th Amendment was correcting some of the flaws of federalism as previously applied. Thankfully.

Most of the acts we probably agree are objectionable flow from CC, GWC, and NPC authority (that were enabled by what we'd argue are wrongly decided cases).

[RickD427]

Let's all remember just what the Tenth Amendment says. Here is the full text:

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.

According to the wording of the amendment, it pretty much "self-destructs" once a power has been delegated to the United States by the Constitution.

Previous posters have already illustrated the powers delegated to the United States by the Commerce Clause (Article 1, Section 8) and the Fourteenth Amendment.

The scope of the Commerce Clause has been greatly expanded in recent years (please refer to Gonzales v Raich) to the point that pretty much all commercial activity can now be related to that clause. I once read an unpublished law review article where the author argued that the simple taking of morning shower "affected interstate commerce" since the power used to heat the water came from an interstate grid, the infrastructure required to deliver the water was sufficiently large to affect that commerce, and the soap used was also a product of interstate commerce.

See where this is going?

That "self destruction" language in the Tenth Amendment has pretty much destroyed it.

[bkz81]

Thank you for the resource Fiddletown, am I getting this correct? Limited regulation of a Constitutionally protected right is allowed to prevent others rights from being violated? As in falsely yelling fire in a crowed theater (Schenck vs. United States), although a first Ammendment right, would violate others right to...safety?. The court uses this as precedence to limit the firearms industry under the pretense of public safety? BTW, none of these questions are in a smart aleck context. Thank You

[rm1911]

Originally Posted by retiredAFcop

The 10th Amendment has been dead for about 150 years (and sadly, it was the Republicans who drove the first nail in its coffin).

Where is the constitutional authority for the federal government to regulate 98% of what it regulates, or do 98% of what it does?


"Interstate Commerce" and "14th Amendment" are arguments that seem to be used to nullify the 10th on a regular basis.

FIFY

[retiredAFcop]

Originally Posted by rm1911

FIFY

You may be right.

I was trying to be charitable.

[Hiknefer]

Originally Posted by RickD427

The scope of the Commerce Clause has been greatly expanded in recent years (please refer to Gonzales v Raich) to the point that pretty much all commercial activity can now be related to that clause. I once read an unpublished law review article where the author argued that the simple taking of morning shower "affected interstate commerce" since the power used to heat the water came from an interstate grid, the infrastructure required to deliver the water was sufficiently large to affect that commerce, and the soap used was also a product of interstate commerce.

It's actually even worse than that. See Wickard v. Filburn which says that by NOT participating in interstate commerce (in this case by growing your own food on your own property for your own animals), you are therefore affecting interstate commerce and your behavior can be regulated. Also, for a total overdose of interstate commerce insanity, read 18 US Code § 922 (q) which is the federal gun-free school zone law. If there's any question in anyone's mind about how vicious and ignominious judges truly are, this should clear things up.

[ccmc]

Originally Posted by fiddletown

The NRA, the Second Amendment Foundation, Calguns Foundation, and others are actively engaged in RKBA litigation. There are perhaps 70 RKBA lawsuits around the country in federal court in various stages of litigation. Litigation takes a lot of time and is very expensive, so your financial support of these groups could be very helpful.

The reality is that the principle that constitutionally protected rights are subject to limited governmental regulation is well established.

So to begin to understand how and to what extent courts are likely to find regulation of the rights protected by the Second Amendment to be constitutionally acceptable, we need to understand the process, standards and applicable case law. And that will be evolving for some time to come.

1. In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.
   
   
2. There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.
   
   
3. The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.
   
   
4. Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.
   
   
5. Second Amendment jurisprudence is still in its infancy. Until Heller just five years ago, it was still in doubt whether the Second Amendment would be found to describe an individual or collective right. Until McDonald just three years ago, the law was that the Second Amendment did not apply to the States (United States v. Cruikshank, 92 U.S. 542 (1876)). So the scope and extent of permissible regulation of rights described by the Second Amendment is still unclear.
   
   
6. So in fact the reality is that rights protected by the Constitution may nonetheless be subject to some limited regulation. Second Amendment jurisprudence will need to mature over time as these sorts of issues get litigated.

Norman v Florida illustrated possibility not equaling certainty where the court used intermediate scrutiny even though the state conceded the Second Amendment and self defense were fundamental rights.

[wpage]

The system is rigged with corruption and politics...

Dream on!

[RickD427]

Originally Posted by Hiknefer

It's actually even worse than that. See Wickard v. Filburn which says that by NOT participating in interstate commerce (in this case by growing your own food on your own property for your own animals), you are therefore affecting interstate commerce and your behavior can be regulated. Also, for a total overdose of interstate commerce insanity, read 18 US Code § 922 (q) which is the federal gun-free school zone law. If there's any question in anyone's mind about how vicious and ignominious judges truly are, this should clear things up.

Outstanding cite in Wickard. That's also a really great example of a tortured application of the commerce clause, and that case has been around for almost 75 years.

[Drivedabizness]

Originally Posted by fiddletown

The NRA, the Second Amendment Foundation, Calguns Foundation, and others are actively engaged in RKBA litigation. There are perhaps 70 RKBA lawsuits around the country in federal court in various stages of litigation. Litigation takes a lot of time and is very expensive, so your financial support of these groups could be very helpful.

The reality is that the principle that constitutionally protected rights are subject to limited governmental regulation is well established.

So to begin to understand how and to what extent courts are likely to find regulation of the rights protected by the Second Amendment to be constitutionally acceptable, we need to understand the process, standards and applicable case law. And that will be evolving for some time to come.

1. In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.
   
   
2. There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.
   
   
3. The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.
   
   
4. Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.
   
   
5. Second Amendment jurisprudence is still in its infancy. Until Heller just five years ago, it was still in doubt whether the Second Amendment would be found to describe an individual or collective right. Until McDonald just three years ago, the law was that the Second Amendment did not apply to the States (United States v. Cruikshank, 92 U.S. 542 (1876)). So the scope and extent of permissible regulation of rights described by the Second Amendment is still unclear.
   
   
6. So in fact the reality is that rights protected by the Constitution may nonetheless be subject to some limited regulation. Second Amendment jurisprudence will need to mature over time as these sorts of issues get litigated.

All great in theory but the lower CA's have NOT applied the standards you lay out above. And SCOTUS has been denying cert - making Heller and McDonald dead letter law for a large % of the national population.

[fiddletown]

Originally Posted by Drivedabizness

All great in theory but the lower CA's have NOT applied the standards you lay out above. And SCOTUS has been denying cert - making Heller and McDonald dead letter law for a large % of the national population.

Welcome to the real world. Litigation can be a slow, drawn out process. It took 134 years to get from Cruikshank to McDonald.

[desert dog]

The constitution has been under attack since its inception......even by the very people who created it. Those in power (be it politicians, government agencies, or judges), will do as they please regardless of what the law is.

* John Adams signed the Sedition act for the sole purpose of arresting and jailing political opponents.

* Andrew Jackson destroyed the constitution and committed atrocities unlike any others in American history. If any President in US history can be considered "evil", Jackson is the guy.

* Abe Lincoln suspended Habeas Corpus / jailed his political opponents, the press, and judges who disagreed with him. Bypassed congress to create his own currency to fund war efforts without congressional support or funding. Sent US troops to battle without congressional approval. Blocked southern ports without congressional approval.

* Woodrow Wilson openly hated the constitution and violated it at every opportunity. Like Adams and Lincoln, he rounded up and arrested thousands of political opponents for "sedition".

* FDR called the constitution a "quaint little document", created in the "horse and buggy era", as he personally squashed property rights, attacked political opponents with federal resources, and tried to move to a socialist society.

So, the tearing down of our constitution is nothing exclusively symbolic of modern times. Our issues now seem trivial compared to a time when the all 3 branches of government supported Indian removal, slavery, and sedition acts.

[fiddletown]

Originally Posted by desert dog

The constitution has been under attack since its inception......even by the very people who created it. Those in power (be it politicians, government agencies, or judges), will do as they please regardless of what the law is.

* John Adams signed the Sedition act for the sole purpose of arresting and jailing political opponents.

* Andrew Jackson destroyed the constitution and committed atrocities unlike any others in American history. If any President in US history can be considered "evil", Jackson is the guy.

* Abe Lincoln suspended Habeas Corpus / jailed his political opponents, the press, and judges who disagreed with him. Bypassed congress to create his own currency to fund war efforts without congressional support or funding. Sent US troops to battle without congressional approval. Blocked southern ports without congressional approval.

* Woodrow Wilson openly hated the constitution and violated it at every opportunity. Like Adams and Lincoln, he rounded up and arrested thousands of political opponents for "sedition".

* FDR called the constitution a "quaint little document", created in the "horse and buggy era", as he personally squashed property rights, attacked political opponents with federal resources, and tried to move to a socialist society.

So, the tearing down of our constitution is nothing exclusively symbolic of modern times. Our issues now seem trivial compared to a time when the all 3 branches of government supported Indian removal, slavery, and sedition acts.

On the other hand, many today seem to cling to the myth that somehow the Founding Fathers were absolutely clear in the Constitution about what it meant and how it applied. And you seem to be contending that you know what that secret is, while others to not. Phooey!

The reality is that tthe interpretation of the Constitution and how it applied was a matter for dispute since the ink was barely dry. Marbury v. Madison appears to be the first major constitutional litigation, and it was decided in 1803. McCulloch v. Maryland was decided 10 years later, in 1813.

It's fatuous to believe that even the Founding Fathers all agreed on exactly what they meant and how the Constitution would apply. The reality was that although fifty-five delegates attended the Constitutional Convention in 1786-87, only thirty-nine signed the proposed Constitution. Thirteen left early without signing, and three refused to sign. There was then a bitter fight over ratification by the States. And it indeed looked like the Constitution would fail ratification until the Massachusetts Compromise was hashed out -- giving us the Bill of Rights after the Constitution was ratified without the Bill of Rights.

The Constitution sets out certain guidelines for what is a political process. People often disagree, and when people live and work together adjustments, compromises and accommodations need to be worked out; and politics is one way such things are worked out.

The Founding Fathers well understood how people do disagree and how politics works. They were active, mostly successfully, in the commercial and political world of the time. Many were lawyers. A few were judges. Almost all were very well educated.

They were generally politically savvy. Many were members at various times of their home colonial assemblies or were otherwise active in local government or administration. They were solidly grounded in the real world and knew how to make things work in the real world. That is why they were able to bring our nation into being.

And since they had their share of disagreements among themselves, in the Constitution they assigned the judicial power of the United States to the federal courts.

[Hiknefer]

Originally Posted by desert dog

The constitution has been under attack since its inception......even by the very people who created it.

One more to add to your list...

In December 1807 President Thomas Jefferson ordered an embargo prohibiting American merchant ships from traveling to any foreign port anywhere in the world, complete with mass Fourth Amendment violations. The embargo was devastating to American merchants.

Once again, "Power tends to corrupt, and absolute power corrupts absolutely."

[SansSouci]

A 10th Amendment? Really? We have one of those?

Lincoln was the first president that consolidated power in a central government using the Civil War as his excuse. Wilson expanded upon it using WWI as his excuse. FDR completed centralized power and a command economy using WWII as his excuse.

As President Madison cautioned: "If tyranny and oppression come to this land, it will be under the guise of fighting a foreign enemy."

Wars serve a lot of purposes, none of them good for Americans. Their primary purpose is to give centralized government excuse to further enslave us.

[curtisfong]

The 14th categorically guts the 10th.

https://en.wikipedia.org/wiki/Incorp...Bill_of_Rights