State Authority vs. US Constitution

AJ Drew · Apr 23, 2016

Need a place to collect ideas for a debate in a political forum. Looking for commentary on law, not the issues themselves.

Does a state have the authority to ignore the First Amendment by banning certain religions or genres of religion. Certainly it can ban certain conduct that a religion might claim is sacred: Human sacrifice comes to mind.

If you answered no, please tell me how the states can ignore the Second Amendment by banning certain arms or genre of arms.

Please, I beg you, do not tell me that nobody needs x, y, and z firearm or magazine. The topic I need help with is constitutional law / state vs. federal authority.

Jeff H · Apr 24, 2016

ajdrew said:
Need a place to collect ideas for a debate in a political forum. Looking for commentary on law, not the issues themselves.

Does a state have the authority to ignore the First Amendment by banning certain religions or genres of religion. Certainly it can ban certain conduct that a religion might claim is sacred: Human sacrifice comes to mind.

If you answered no, please tell me how the states can ignore the Second Amendment by banning certain arms or genre of arms.

Please, I beg you, do not tell me that nobody needs x, y, and z firearm or magazine. The topic I need help with is constitutional law / state vs. federal authority.

As far as I know, the courts have found that the first and second amendments do not guarantee unlimited protection.

Hate speech is not protected under the 1st amendment.
20mm autocannons are not protected under the 2nd amendment.

I know, I know. How hard it is to understand what "shall not be infringed" means... But AJ wanted commentary on the case law.

AJ Drew · Apr 24, 2016

Hate speech certainly is protected by the First Amendment. You can not take it to the point of encouraging eminent criminal conduct. On the 20mm auto cannon, sure you can. If full auto, there is a federal law that says they can not currently be 'manufactured' for civilian ownership. However, if semi auto it could be made today and you could own one. Cannons, grenades, grenade launchers, all these things are perfectly legal no matter when they were made. You just have to pay the federal transfer tax. Now fully automatic anything, those had to be manufactured before 1983 or somewhere around there. Full auto M16s, AK47s, UZIs, what ever you want. As long as you pay the tax, you are good to go.. perfectly legal. Oh, and the tax is only $200.00

The federal government claims the right to do these things under two constitutional clauses. One gives Congress the right to tax. The other gives the federal government the right to control commerce. States have no similiar standing.

Now you are absolutely right that neither of these rights are all inclusive. But a state still needs a legal standing to do a thing. BTW: I am not a firearms fanatic, do not own any of the scary black things. It just seems like if a state has a right to ban certain weapons or genre of weapons then they have the right to ban a religion, the press, or free speech. Kind of scary stuff, but was really just discussing it for academic purposes. Trying to understand how states have authority it looks like they dont have.

Jeff H · Apr 25, 2016

I guess I didn't expand on my point enough.

Yes, hate speech and 20mm Autocannons can be both legal and protected; but both are highly regulated and have nasty consequences if you cross the line (which can be a fuzzy line). Your right to free speech and guns exists only until a congressional body creates laws to regulate it and then it is up to the courts to decide if the law is constitutional. Not what I would call "not to be infringed" but not a lot I can do about it either.

In Kalifornia, the legislature and courts have different interpretations than in Wyoming or most of the other free states. 20mm cannons are illegal to own, hell, an AR15 without a bullet button is illegal in Calif.

ajdrew said:
If full auto, there is a federal law that says they can not currently be 'manufactured' for civilian ownership. However, if semi auto it could be made today and you could own one. Cannons, grenades, grenade launchers, all these things are perfectly legal no matter when they were made. You just have to pay the federal transfer tax. Now fully automatic anything, those had to be manufactured before 1983 or somewhere around there. Full auto M16s, AK47s, UZIs, what ever you want. As long as you pay the tax, you are good to go.. perfectly legal. Oh, and the tax is only $200.00

But with the Full Auto register being closed, the supply is limited and a $500 AR15 is suddenly a $20,000 M16. You also have to get your local Sheriff to sign off on the purchase, and you can't cross state lines without notifying the Sheriff. Not what I would call "not to be infringed".

ajdrew said:
But a state still needs a legal standing to do a thing.

The Tenth Amendment declares, "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." In other words, states have all powers not granted to the federal government by the Constitution.

The 10th amendment gives this standing. The courts provide the balance. It is the Federal government that our founding fathers wanted to restrict, not the State.

Vicious Vex · Apr 25, 2016

Jeff H said:
Your right to free speech and guns exists only until a congressional body creates laws to regulate it

An unconstitutional law is unconstitutional from inception, not implementation or conviction.

People forget that the constitution was put in place to limit federal government, and any powers not expressly stated within the constitution are inherently owned by the states.

However, the First Amendment supersedes any State issued law or restriction on anyone's First Amendment rights guaranteed by the constitution. Meaning, that unless the states amend the constitution, any restriction of the practice of religion is a violation of the First Amendment.

The only exception is when your perceived "First Amendment Right" to infringe against someone else's rights or civil liberties. Like someone who created a religion that said they had to discriminate against all black folks. That wouldn't be a legal defense if say they declined someone from renting housing because they were black. Our constitution has checks and balances even within the rights of our citizens. The black person's rights would be asserted through equal protection in the above scenario.

If someone's actions are a legitimate threat to an individual or the "general safety" of the populous, they don't have a legal defense to hide behind a religion.

That goes for a Radical Muslim, or Purple People Eater. If a Muslim 'must bomb the infidels' - or American's - per their perceived religious beliefs, they will be tried for terrorism. Just as if a Christian bombs a hospital, because of their perceived religious beliefs, that perform abortions, they would be tried accordingly.

Jeff H · Apr 25, 2016

Vicious Vex said:
An unconstitutional law is unconstitutional from inception, not implementation or conviction.

A law is not unconstitutional until it is ruled by the courts to be unconstitutional. The State legislature is free to make any law it wants as long as it can get enough votes to override a potential veto.

Take the new North Carolina law. Is that law unconstitutional because it discriminates against the LGBT community? Quite possibly, but it is still the law of the land in NC until the courts find otherwise. Same with Arizona and their immigration law from 2010. The law was made but later mostly struck down by the Supreme Court. The DC gun band that was struck down by the Heller case. I could go on and on.

Vicious Vex · Apr 25, 2016

Jeff H said:
A law is not unconstitutional until it is ruled by the courts to be unconstitutional. The State legislature is free to make any law it wants as long as it can get enough votes to override a potential veto.

Take the new North Carolina law. Is that law unconstitutional because it discriminates against the LGBT community? Quite possibly, but it is still the law of the land in NC until the courts find otherwise. Same with Arizona and their immigration law from 2010. The law was made but later mostly struck down by the Supreme Court. The DC gun band that was struck down by the Heller case. I could go on and on.

The supreme court is what I was quoting "Any statute or official act not so based, or in such conflict with it, was to be considered unconstitutional, and null and void from inception."

That is the supreme court's ruling. Not my personal opinion. Unfortunately we live in a time where the phrase "Congress shall make no law..." means nothing.

The NC Law doesn't violate the groups protected within the Equal Protection Act. You would have to change the definition of discrimination which currently, doesn't contain gender identity as a protected class. (Fun fact, lawmakers built in a loophole for the LGBT community; but no one talks about that).

AJ Drew · Apr 25, 2016

Jeff H, we are both getting side tracked. Knowing what a bullet button, I will bet we could do that all day and have fun. But to what I am trying to figure out, what makes a state believe they have a constitutional right to ban a specific firearm or genre. They dont try to ban religions and the Temple of Satan is really starting tp piss off a few states ( I think they are a hoot ).

10th Amendment Argument - Doesnt hold water because it includes the words "nor prohibited by it". The Second Amendment clearly prohibits states from banning specific firearms or genre of firearms. It would be the same as banning a religion or genre of religions.

Vex, I think you might be onto something about the Constitution and law itself not mattering. I think there are 7 states with bans on the scary black guns. Thus far, the Supreme Court has refused to hear challenges. I think it might be that they know what the Constitution says and just don't want to rule on it.

Jeff H · Apr 25, 2016

ajdrew said:
Jeff H, we are both getting side tracked. Knowing what a bullet button, I will bet we could do that all day and have fun. But to what I am trying to figure out, what makes a state believe they have a constitutional right to ban a specific firearm or genre. They dont try to ban religions and the Temple of Satan is really starting tp piss off a few states ( I think they are a hoot ).

AJ, I'm certainly one of those "shall not be infringed" type of people, but that clearly isn't the world we live in. Washington DC had a complete handgun ban in effect for quite a while. It was eventually struck down in the Heller case. Linked below is the majority opinion. I think if you read through it you will get the courts take on the limits of the 2nd amendment. It does not guarantee complete unrestricted access according to the court.

https://www.law.cornell.edu/supct/html/07-290.ZO.html

Excerpt that is pertinent here:

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment ’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16Ala. 65, 67 (1849); English v. State, 35Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).