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Thought for the day
Why do courts consider legislative enactments, restrictions on the right to arms, as evidence of the popular understanding of the Second Amendment? Those seem to be the main focus in recent decisions.
The underlying reasoning must go like this: (1) legislators would not enact a law if they thought it was unconstitutional (yeah, I know this is quite an assumption) so (2) the fact that they did enact a restriction on a right (around the time of the framing(s)) is evidence, or at least suggestive, that what was restricted was not seen as within the right in question.
Apply that to the Second Amendment. As of Barron v. Baltimore (1833), the Supreme Court had ruled that the federal Bill of Rights did not restrict the states. As of the Slaughterhouse Cases and Cruikshank (1873 and 1876), the Supreme Court had ruled that the 14th Amendment didn't require states to conform to the federal Bill of Rights, either.
So state legislatures would have understood, throughout the 19th and 20th centuries, that the Second Amendment did not bind them. The above reasoning is thus without basis. A state legislature's enactments don't suggest that the legislators thought the restrictions comparable with the Second Amendment, because they wouldn't have thought that the Second Amendment constrained their actions.
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Thanks for repeating what I've been posting for the past decade.
The supremacy clause, the fact that ONLY the 1st originally the 3rd, mentions solely Congress, and the guarantee of a republican form of government all counter Barron.
The lack of any direct reference in the 14th to the BoR belies all claims that the 14th incorporates the BoR. If it did, the Framers should have said so. If the BoR applied ONLY to the feds why did the Framers single out the 1st?
Sharing something. Share with your reprehensibles and senilators.
On the requirements of a Legislator to remain
obedient to the Constitution.
185. ..."The case is different with the legislator and
executive. He is bound to support the Constitution, - to uphold
it as one of the pillars to an edifice. He is under the
Constitution, not above it. He cannot support it by doing an act
repugnant to it. 'His public office is a public trust.' If he
doubts his power to do under the authority of the Constitution,
he is bound to resolve the doubt against the act, not in favor of
it."
"Mr. Cooley thus states it: 'Legislators have their authority
measured by the Constitution; they are chosen to do what it
permits, and nothing more, and they take a solemn oath to obey
and support it. When they disregard its provisions they usurp
authority, abuse their trust and violate the promises they have
confirmed by an oath. To pass an act when they are in doubt
whether it does not violate the Constitution is to treat as of no
force the most imperative obligations any person can assume. ...
A witness in court who would treat his oath thus lightly, and
affirm things of which he was in doubt, would be held a criminal.
Indeed, it is because the legislature has applied the judgement
of its members to the question of its authority to pass the
proposed law, and has only passed it after being satisfied of the
authority, that the judiciary waive their own doubts and give it
their support.'"
"He holds the same views as to the duty of the President, and
maintains that the President, even where the judiciary has
sanctioned the constitutionality of an act, is not only duty
bound to give his approval to a similar act, but may, in
consonance with his duty, withhold his approval. It follows from
this, that a legislator cannot justify a vote for a law on the
ground that as judge he would not declare it void. The legislator
crosses no forbidden line when he refuses to enact what he
believes is repugnant to the Constitution. The judiciary does
cross a forbidden line where it declares a law void, unless it be
without doubt repugnant to the Constitution. The legislator is
never warranted in voting for a law he does not believe the
Constitution sanctions, to support which he has sworn as an
affirmative duty, not that he will not pull down the pillars of
the ediface, but, as one of the many pillars, he will uphold it."
"In the case of the law-maker, the question to be asked is: 'Have
I the right under the Constitution to pass this act ?' The onus
is for him to show his authority. In the case of a judge, the
question is: 'Is the law clearly unconstitutional ? In annulling
the law in support of the Constitution will I transcend my
judicial functions and usurp the legislative; or is the
repugnancy so strong that I will only act judicially in annulling
the effect of the law, and not transcend the boundary of my power
?' The burden shifts in the two cases. The legislator must show
2
that he has the right; the judge must show the legislator was
clearly wrong."
"Hence the law-maker may not justify a vote for a measure which
as judge he could not declare void; but, if the judiciary
declares such an act unconstitutional, it should forbid the law-
maker to pass similar legislation. On the other hand, though the
judiciary cannot declare a law unconstitutional because not
clearly repugnant, it does not justify the law-maker in voting
for it."
The Constitution of the United States: A Critical Discussion of
its Genesis, Development, and Interpretation, John Randolph
Tucker, LL.D., 1899. ISBN 0-8377-1206-8
Cooley on Constitutional Law, Pp. 153-54. 161-63., Treatise on
the Constitutional Limitations which Rest upon the Legislative
Power of the States of the American Union, Judge Thomas Cooley,
1868.
Thomas M. Cooley, LL.D., General Principles of Constitutional Law
in the United States of America, (3rd ed. 1898).
There is an alternative understanding and behavior that fits the facts. The legislature has, for centuries, enjoyed the privilege of assumed constitutionality from the courts. Nominally co-equal branches of government presume the other branches are working with the people in mind.
That has changed. Legislatures now do not take their oaths seriously and do not bother to figure where a proposed law fits in the constitutional framework. They do this freely because the courts are of the same anti-freedom mindset, and both the legislatures and the lower courts are not interested in civil liberty. 20 years and millions of dollars of litigation later, 5% of the bad law may be overturned. But the perpetrators are off collecting their pensions, secure in their superior feelings about riff-raff owning guns.
If you look at the last few decades of behavior in California, Massachusetts, IL, NY, NJ, MD it is not hard to see this pattern.
There is another unpleasant dimension involving law enforcement, but that is a comment for another day.
Mr. Hardy, that is a great thought.
I do agree with David Lawson. A lot of states had their own RKBA provisions in their state constitutions. There is quite a lot of case law from the 19th century regarding what these provisions protect and what they don't.
Most of these courts said these state RKBA provisions protect open carry, and not concealed carry (though there were some very notable exceptions... I also wish to note that all kinds of carry, open or concealled, were almost unrestricted in the entire USA until 1814).
All of the courts that ruled on what weapons were protected said that military weapons were protected. A few said that all weapons were protected, not military ones only.
The problem with this line of thinking is that the Bill of Rights was designed expressly to protect INDIVIDUAL rights.
The tenth amendment sets a hierarchy of rights of individuals over powers granted to governments and it was the first of the ten litigated to irrelevancy.
If legislators do not impede the us Constitution, then why do we have a Supreme Court?
Good points.
Until Mcdonald v. Chicago, the 2nd Amendment of the U.S. Constitution is really irrelevant to State laws.
Analysis of State gun-control laws before 2010, should more examine how they related to any State Constitutions which also had some kind of RKBA analog to the Federal 2nd Amendment. But even that would be of limited use.
Historical examination of the 2nd Amendment should limit itself to just Federal Laws. In which case, even the first big Federal restrictions like the 1934 NFA tried using the legal justification of the Federal power to raise taxes, in order to evade the restrictions of the 2nd Amendment.
Most of the states had their analogs. My former abode, Illinois, has Article 22, "Subject to the police power, the right of the people to keep and bear arms shall not be infringed". Though this was part of the constitutional changes made in the 1970s. I don't know what it had in its original constitution.
I have long thought that "Subject to the police power" is unnecessary as all rights are thought to be constrained by the police powers to some degree.