The Second Amendment Only Applies to the Federal Gov't, NOT State Gov't

Discussion in 'Law and Justice System' started by DavidS, May 28, 2009.

  1. DavidS
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    DavidS Anti-Tea Party Member

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    VERY interesting little nugget when researching Sotomayor:

    CNSNews.com - Sotomayor Ruled That States Do Not Have to Obey Second Amendment

    The text of the Amendment is as follows:

    "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

    Sotomayor says that this right shall not be infringed upon by the Federal Government, but State governments don't have to abide by this!

    (CNSNews.com) – Supreme Court nominee Sonia Sotomayor ruled in January 2009 that states do not have to obey the Second Amendment’s commandment that the right to keep and bear arms shall not be infringed.

    In Maloney v. Cuomo, Sotomayor signed an opinion of the U.S. Court of Appeals for the Second Circuit that said the Second Amendment does not protect individuals from having their right to keep and bear arms restricted by state governments.

    The opinion said that the Second Amendment only restricted the federal government from infringing on an individual's right to keep and bear arms. As justification for this position, the opinion cited the 1886 Supreme Court case of Presser v. Illinois.

    “It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right,” said the opinion. Quoting Presser, the court said, “it is a limitation only upon the power of Congress and the national government, and not upon that of the state.”

    The Maloney v. Cuomo case involved James Maloney, who had been arrested for possessing a pair of nunchuks. New York law prohibits the possession of nunchuks, even though they are often used in martial arts training and demonstrations.

    The meaning of the Second Amendment has rarely been addressed by the Supreme Court. But in the 2008 case of Heller v. District of Columbia, the high court said that the right to keep and bear arms was a natural right of all Americans and that the Second Amendment guaranteed that right to everyone.

    The Second Amendment, the Supreme Court ruled, “guarantee(s) the right of the individual to possess and carry weapons in case of confrontation. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’”

    “There seems to us no doubt,” the Supreme Court said, “that the Second Amendment conferred an individual right to keep and bear arms.”

    Sotomayor, however, said that even though the Heller decision held that the right to keep and bear arms was a natural right--and therefore could not be justly denied to a law-abiding citizen by any government, federal, state or local--the Second Circuit was still bound by the 1886 case, because Heller only dealt indirectly with the issue before her court.

    “And to the extent that Heller might be read to question the continuing validity of this principle, we must follow Presser because where, as here, a Supreme Court precedent has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which [it] directly controls.”

    In its 2008 case, the Supreme Court’s took a different view of its own 1886 case, saying that Presser had no bearing on anything beyond a state’s ability to outlaw private militia groups.

    “Presser said nothing about the Second Amendment’s meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations,” the court ruled. “This does not refute the individual-rights interpretation of the Amendment.”

    The Second Amendment is the only part of the Bill of Rights that the Supreme Court has not specifically extended to the states through a process known as incorporation, which involves interpreting the Fourteenth Amendment to read that no state can deprive its citizens of federally guaranteed rights.

    The Fourteenth Amendment reads, in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States … nor deny to any person within its jurisdiction the equal protection of the laws.”

    Sotomayor’s decision rejected the Fourteenth Amendment’s incorporation doctrine as far as Second Amendment was concerned, saying any legislation that could provide a “conceivable” reason would be upheld by her court.

    “We will uphold legislation if we can identify some reasonably conceived state of facts that could provide a rational basis for the legislative action. Legislative acts that do not interfere with fundamental rights … carry with them a strong presumption of constitutionality,” the appeals court concluded. “The Fourteenth Amendment,” she wrote, “provides no relief.”

    Sotomayor’s ruling ran to the left of even the reliably liberal San Francisco-based U.S. Court of Appeals for the Ninth Circuit, which ruled in the April 2009 case Nordyke v. King that the Second Amendment did, in fact, apply to the states via the Fourteenth Amendment, heavily citing the Supreme Court in Heller.

    “We therefore conclude that the right to keep and bear arms is deeply rooted in this Nation’s history and tradition,” said the Ninth Circuit court of Appeals. “We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.”
     
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  2. DavidS
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    DavidS Anti-Tea Party Member

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    An interesting outcome of this might be that State governments don't have to recognize the First Amendment and that if you live in California - you can be imprisoned in state jail for insulting the governor if freedom of speech was against Californian rules (thankfully it's not).

    VERY interesting...
     
  3. xotoxi
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    xotoxi Platinum Member

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    What if the state secedes?
     
  4. Kevin_Kennedy
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    Kevin_Kennedy Defend Liberty

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    Technically she's right. The Constitution wasn't meant to apply to the individual states. It certainly wouldn't hold now, but an argument could be made that the states could ban firearms. I'm guessing, however, that all the state constitution's protect the right to bear arms, and would have to be amended first.

    For example, Ohio's Constitution states:

    "The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power."
     
  5. Kevin_Kennedy
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    Kevin_Kennedy Defend Liberty

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    Then their state government simply takes back the powers it ceded to the federal government.
     
  6. Father Time
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    Father Time I'll be Still Alive

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    Wasn't the 14th amendment supposed to make the amendments apply to states as well?
     
  7. Yurt
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    Yurt Gold Member

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    in theory, however, the 14th has not been directly applied to the second amendment, at least as far as i know
     
  8. Citizen
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    Citizen Active Member

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    Granted, the Constitution was not meant to apply to the states, but all that changed with the 14th Amendment which I am sure you know states in part, "No state shall make or enforce any law which shall abridge the priviliges or immunities of citizens of the United States; nor deny to any person of life, liberty, or property, without due process of law; nor deny to any person within ots jurisdiction the equal protection of the laws."

    Any state denying their citizens their US Constitutionaly guaranteed right to keep and bear arms would clearly be abridging the rights held by all other citizens, and be in violation of the 14th Amendment which made the US Constitution applicable to all the states.

    Granted, most, if not all states have some right to arms in their state constitution, but if I am not mistaken, the US Constitution trumps State Constitutions, and with that in mind no state can ban the keeping and bearing of arms by peaceful citizens.
     
  9. Citizen
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    Citizen Active Member

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    I almost left out that the question is moot since the Supreme Court has already rulled that the second amendment applies to individuals, and restates their existing right to keep and bear arms.
     
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  10. Tech_Esq
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    Tech_Esq Sic Semper Tyrannis!

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    No this is just a good example of Sotomayor being a whack job.
     
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