Gun Control

[StrangeSox]

That's definitely opening up a Pandora's Box. How about we go through that old document and find everything in it that seems dated and change it then, seems fair enough.

 

Even if I were to just give you that it's an old document with some dated things in it though, it's not all that hard to make a case that the handgun ban didn't do anything for safety in Chicago.

 

That's essentially my view. There's no reason we have to strive to meet late-18th century philosophy and politics forever, but I don't see a good reason for enacting a ban. In general, the effects of bans are mixed at best.

[whitesoxfan101]

Whether or not it's effective should have no bearing on the constitutionality.

 

But his point seemed to be that it's constitutional, but we need to keep in mind how old the document is.

[NorthSideSox72]

Whether or not it's effective should have no bearing on the constitutionality.

They are certainly two different arguments. But in both cases, the case for this type of gun control is quite weak.

 

[lostfan]

Question for some of the states-rights people here: how do you view this issue? Most (all?) states-rights advocates are right-leaning and I would assume support gun ownership rights, but this ruling makes federal law trump state and local law.

People like to ignore the part where the Constitution says federal law trumps state law, though (granted, I can't name where exactly it says that in the Constitution anymore since it's been too long)

[StrangeSox]

It's all about the 10th amendment--powers not enumerated in the Constitution are left to the states. But then came the Civil War and the 14th and that sort of lost its power.

[lostfan]

Ok I found it, it's Article VI

 

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

[SI1020]

Ideally, the government shouldn't be involved in marriage at all, but that's another discussion.

It's nice to know that I'm not the only one who believes that.

 

[kapkomet]

Ideally, the government shouldn't be involved in marriage at all, but that's another discussion.

There's one thing we agree 100% on.

[kapkomet]

Ok I found it, it's Article VI

 

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

 

Which is why state laws are then held to a federal standard. However, this doesn't mean that federal laws "trump" state law, it just means there's a precedent over state law - local laws can apply as long as they are not against the constitution - it's explicit, not implicit, here. It's that simple.

:::::::

 

While I'm at it, who here votes for "living and breathing" for a constitution and argues that it's an "old outdated document"?

Edited June 29, 2010 by kapkomet

[G&T]

Which is why state laws are then held to a federal standard. However, this doesn't mean that federal laws "trump" state law, it just means there's a precedent over state law - local laws can apply as long as they are not against the constitution - it's explicit, not implicit, here. It's that simple.

:::::::

 

While I'm at it, who here votes for "living and breathing" for a constitution and argues that it's an "old outdated document"?

 

Federal law trumps state law. However the federal government cannot enact laws upon the state except pursuant to the interstate commerce clause.

[G&T]

I should add that this doesn't really impact states rights. Local govt can place restrictions on guns in the same way we place limitations on speech (time, place, and manner restrictions). Outright bans are simply not allowed.

Edited June 29, 2010 by G&T

[kapkomet]

Federal law trumps state law. However the federal government cannot enact laws upon the state except pursuant to the interstate commerce clause.

 

 

I guess I'm getting hung up on the word "trump". I don't see it that way - because state laws can supercede federal law, as long as it passes constutitional merits.

[G&T]

I guess I'm getting hung up on the word "trump". I don't see it that way - because state laws can supercede federal law, as long as it passes constutitional merits.

 

There are certain areas where states have exclusive powers (police powers) and others where they act because the federal govt has not acted. States cannot enact laws that are contrary to federal law. In that respect it sort of looks like precedent, but the Feds can enact laws that are contrary to state law and the federal law (assuming Congress is acting constitutionally) will override the state law.

[Texsox]

While not a fan of handgun bans, I believe the logic to how this helps law enforcement and perhaps lowers the crime rate is anytime they catch someone with a handgun, they have caught a criminal and have the opportunity to punish them however the law allows. Additionally, if they use a handgun while committing a crime, there can be additional penalties. I decided that while my kids were growing up the dangers of having a handgun ready for protection were worse than the potential for someone breaking into my home and threatening bodily harm. People who live in different areas or think having the gun in less of a ready state are free to differ.

[Soxbadger]

I posted this on another board. Its not my most elegant work, but I believe it sums up my opinion on this topic (if any of you are interested).

 

The gun control debate is a difficult one for a variety of reasons. The main problem is that it pits different ideologies against each other. If people were consistent on their application of these ideologies Id probably have less problem with the ruling, but its so apparent that Supreme Court Justices tailor the law based on their personal opinion, that it leaves the rest of us to suffer.

 

AnywayI dont agree with the current interpretation of the Second Amendment. My interpretation differs from the current courts, and therefore my opinion is that the govt, state or federal, can regulate people's right to bear arms, but it can not restrict those in the militia from bearing arms.

 

The text of the Amendment reads as follows (although there may be a different text that was actually signed by the states):

 

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.

 

I read the amendment as saying that the right of the militia to keep and bear arms shall not be infringed. The reason I read it this way is that in the beginning of our country most of the "army" was comprised of militia, which represented the states. The state militias were the only thing that would be able to stand against the federal govt abuse of power. Therefore it was necessary to have an amendment that stated that the right of the state militias to have arms, shall not be infringed by the federal govt. I think this is the most logical reading and makes the most sense given the context of the historical period and the actual phrasing of the amendment.

 

It would make absolutely no sense to reference the militia in the Amendment, have it be the first clause (and therefore arguably the most important clause) and then give the statement no weight in the interpretation of how we read the clause. If the founding fathers wanted all American's to have an unlimited right to weapons (which is what this amendment would grant), they could have easily written the Amendment as follows:

 

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

 

So the question is, why do we give no weight to the arguably most important statement of the clause?

 

My only answer is revisionist history. When a Democrat judge does this, you hear it called "liberal judges" who "rewrite the constitution". This is where my problem with ideologies come in. If people want to be strict constructionists in term of the constitution, then do it. But dont just pick and choose when you are going to take the constitution as cannon and when you are going to rewrite it to suit your own needs.

 

That being said, this argument has absolutely no legal weight. Barring some major change in the composition of the court (ie I became Chief Judge of the Supreme Court) you will never see this argument made or relied upon. The law believes in Stare Decisis (unless the Supreme Court decides it doesnt for that opinion), which means that you let what has been decided stay decided (there are innumerable exceptions made, the most recent being with how much money Corporations can donate for campaigns).

 

As for the application of current law to the 2nd Amendment. I think that its a sham and why Im not invited to Conservative parties. Im fine with state rights, Im fine saying that a state can decide whether or not it wants to allow gay marriage. I dont agree with it, but I understand the idea that certain states may different ideas on what is best for their state.

 

What Im not fine with, is picking and choosing when states rights are going to matter.

 

Here is the Illinois Constitution:

 

SECTION 22. RIGHT TO ARMS

Subject only to the police power, the right of the

individual citizen to keep and bear arms shall not be

infringed.

 

The constitution of Illinois is crystal clear, police power trumps your right to bear arms. You will also notice, there is absolutely no mention of the militia (as compared to the federal constitution). I believe that the Illinois constitution is the more accurately written amendment (unless you read the federal one as only applying to the militia). It would also make the federal govt constitution make more sense, as the fed constitution would be preventing the fed from regulating the state's right to arm its militia, as opposed to the state regulating its own citizens.

 

Most people who are pro-gun do not believe that you should be able to own a nuclear weapon, or any type of weapon that you can dream of. They do not believe that terrorists should be able to have machine guns, or convicted murderers be able to purchase a cruise missile. But that is the literal interpretation of the 2nd Amendment, if you take it as applying to all citizens.

 

Its clear as day, SHALL NOT BE INFRINGED, there is no qualification, there is no exception. Over time the Supreme Court has decided to read into the Second Amendment the idea that the govt can restrict "some" weapons, but they use subjective tests and basically make it up as they go along. In essence they are saying that the police power of the govt can decide when a weapon is so dangerous, that the weapon is some how no longer privileged 2nd amendment protection.

 

The Illinois constitution is far more clear and makes far more sense. You can own any weapon, carry any weapon at any time, subject to police power of the state. Therefore the state can make any law limiting your right to bear arms, so long is it based on the states power to police itself and protect the people. So if the City of Chicago believes that the people of the city will be safer if no one can own a handgun, or be able to bring a gun into court, that is okay (side note you cant bring a gun into federal court either, under the 2nd amendment shouldnt I be able to? If guns make me safer, wouldnt I be safer in court if I could pack my own heat?), it is their right to do it.

 

No one forces you to live in Chicago, no one has to live here. There are plenty of cities, counties etc where you can have guns, etc. But if the majority of the people of chicago, believe that we would be safer if no one can have a gun, why cant we make that decision?

 

I understand the argument of tyranny of the majority, but I dont believe that it applies to this situation. The people of Chicago are not using their majority to unfairly hurt a minority (Ie the people of Chicago pass a law that any minority has to give a white person $1 when they see them on the street or go to jail). They are instead using their majority to make a difficult decision on what is best for everyone's safety. Its not like we are voting against guns because "Well we just hate gun owners" or that there is some underlying motive. Its because based on our life, based on our experience, we believe that this city would be safer if no one could legally own a gun. People may have different opinions, just like they may differ on how high Chicago sales tax is, or any of the other innumerable differences that set 1 city or state apart from another, but that is why we have a Republic. So that if we have differences we decide them on a vote of the people. A Republic is not having a group of 9 people, none of them ever living in the State of Illinois, maybe a few of them having lived in Chicago for longer than a month, making decisions on how we should live our life.

 

So that is my argument against this ruling. That a state should be able to interpret the 2nd Amendment based on their own constitution. That each of these constitutions were accepted by the federal govt when the state entered the Union (which by implication means that the Federal govt accepted the States constitution as being constitutional under the Federal Constitution), and therefore the State should have the ultimate power to interpret its own law and rules.

 

What really gets me, is that the same justices who will expand the Federal govt's power beyond comprehension when it comes to crime, gun rights, making drugs illegal, morality, etc. Are the same justices who say that they are for state rights.

 

You cant have it both ways, it just doesnt make sense. If you believe in state rights, you should mourn this decision.

 

[bmags]

Question for some of the states-rights people here: how do you view this issue? Most (all?) states-rights advocates are right-leaning and I would assume support gun ownership rights, but this ruling makes federal law trump state and local law.

 

meh, it's a constitutional amendment, for the past century and a half it's been pretty clear that the federal bill of rights applies to states. They wouldn't be inconsistent at all to be pro states rights and anti-gun control.

[bmags]

While not a fan of handgun bans, I believe the logic to how this helps law enforcement and perhaps lowers the crime rate is anytime they catch someone with a handgun, they have caught a criminal and have the opportunity to punish them however the law allows. Additionally, if they use a handgun while committing a crime, there can be additional penalties. I decided that while my kids were growing up the dangers of having a handgun ready for protection were worse than the potential for someone breaking into my home and threatening bodily harm. People who live in different areas or think having the gun in less of a ready state are free to differ.

 

These are good points Tex. I'm torn on this issue, I can't really form a coherent thought right now of what my dissent is against it but...if i was in person i could probably relay it better.

[Soxbadger]

It would be inconsistent because generally the State Constitution is the final interpretation of law when it comes to state matters.

 

This ruling makes it clear that the Federal govt does not need to respect state Constitutions or state Amendments. The Supreme court could have easily reasoned that the Illinois Supreme Court is the final statement on the rights of Illinois citizens and therefore it is up to individual states to reasonably interpret their own constitutions.

 

It should be also noted that the Illinois Constitution has been accepted for over 100 years and the Supreme Court never ruled its Amendment on the right to Bear Arms was unconstitutional. When Illinois was accepted the Supreme Court of the US could have very easily stated that they needed to have the 2nd Amendment verbatim in its Constitution, but its clear that US allowed Illinois with the Constitution as is. So it only stands to reason that at some point, Illinois had the right to interpret the 2nd Amendment as it liked.

Edited June 30, 2010 by Soxbadger

[bmags]

It would be inconsistent because generally the State Constitution is the final interpretation of law when it comes to state matters.

 

This ruling makes it clear that the Federal govt does not need to respect state Constitutions or state Amendments. The Supreme court could have easily reasoned that the Illinois Supreme Court is the final statement on the rights of Illinois citizens and therefore it is up to individual states to reasonably interpret their own constitutions.

 

It should be also noted that the Illinois Constitution has been accepted for over 100 years and the Supreme Court never ruled its Amendment on the right to Bear Arms was unconstitutional. When Illinois was accepted the Supreme Court of the US could have very easily stated that they needed to have the 2nd Amendment verbatim in its Constitution, but its clear that US allowed Illinois with the Constitution as is. So it only stands to reason that at some point, Illinois had the right to interpret the 2nd Amendment as it liked.

 

The ultimate paragraph is true. But regarding the conservative-nature of the modern court it isn't surprising they took this up so quickly. But, state constitutions cannot infringe on rights guaranteed in the federal bill of rights. So I disagree that this ruling is saying that state laws don't matter, rather that this state law infringed on a "right" guaranteed to all US citizens, and the state cannot infringe on that law. But yes, I do see specifically banning handguns could totally be argued as a "reasonable limitation", but considering how i disagree with a lot of the limitations on free press and speech, i'd rather err on the side of more liberal readings of both.

[Soxbadger]

And I dont think the Illinois Constitution is infringing on the US Constitution, and strangely enough, neither did the Supreme Court.

 

If the Illinois Constitution is an infringement, then shouldnt the Illinois Constitution be under attack here? Instead it is the City of Chicago.

 

The state of Illinois has the ultimate right to interpret its own Constitution, unless the Supreme Court states that the Illinois Constitution is unconstitutional.

 

Thus it should have been up to the Illinois Supreme Court to decide whether or not this law was legal under the Illinois Constitution. If the law was deemed legal, then it should have gone before the Federal Supreme Court.

 

The Supreme Court cut out one of the most important steps of state rights. Generally you do not have a situation where the Constitution of the State is slightly different than the Federal Constitution, which could give rise to a different interpretation of law under both. But in this case it existed and in this case the state was given no deference to interpret its own Constitution.

 

Its probably one of the biggest blows to state rights in history.

Edited June 30, 2010 by Soxbadger

[NorthSideSox72]

Badger, thanks for the thoughtful write-up.

 

In undergrad, I took two Con Law classes, and one of the papers I wrote covered 2A. Your feeling about the militia being equivalent to the state armed forces is both correct and incorrect, in my view. You are certainly correct that at the time it was written, the state militias were the control over federal power in at least an indirect sense. And I agree that is who they meant to protect. However, what you are seeing is that the current "militias" are actually the national guard, which is ultimately under federal control. Therefore, the PURPOSE of the militia is now served by the state government AND its people. It therefore only makes sense, in my view, that incorporation to the states and the people of 2A has to be protected.

 

[G&T]

And I dont think the Illinois Constitution is infringing on the US Constitution, and strangely enough, neither did the Supreme Court.

 

If the Illinois Constitution is an infringement, then shouldnt the Illinois Constitution be under attack here? Instead it is the City of Chicago.

 

The state of Illinois has the ultimate right to interpret its own Constitution, unless the Supreme Court states that the Illinois Constitution is unconstitutional.

 

Thus it should have been up to the Illinois Supreme Court to decide whether or not this law was legal under the Illinois Constitution. If the law was deemed legal, then it should have gone before the Federal Supreme Court.

 

The Supreme Court cut out one of the most important steps of state rights. Generally you do not have a situation where the Constitution of the State is slightly different than the Federal Constitution, which could give rise to a different interpretation of law under both. But in this case it existed and in this case the state was given no deference to interpret its own Constitution.

 

Its probably one of the biggest blows to state rights in history.

 

I think you are misinterpreting the Constitution's application to the states. A state or locality cannot place an outright ban on Constitutionally protected rights under the police powers. It can be restricted in any way consistent with the scrutiny standards but it cannot be banned. States try to claim "police power" for basically every restraint on personal liberty they create, but the Supreme Court does not permit all of them.

Under your logic, the state could ban speech, abortions and everything else under the guise of police powers (health, safety, and welfare of the state's citizens).

Here, the Supreme Court states that there is a right to own handguns. That right can be restricted very heavily, but it cannot be banned.

[Balta1701]

So yeah, my state again this year just passed the "Bring your gun to the bar" bill.

[Y2HH]

So yeah, my state again this year just passed the "Bring your gun to the bar" bill.

 

As a FOID card carrying person who doesn't own a gun/has never owned a gun, but did learn how to shoot them, I have to say I wouldn't even have a problem with the Chicago handgun ban if it worked...but it doesn't, not even a little. The number of shootings (some not resulting in murder, but injury) in Chicago, via the unregistered handgun in the hands of the criminal are staggering. Gun control will not *ever* work unless this state, this county/surrounding countys, this entire country, and every surrounding territory and other country/nation also banned them, prevented manufacturers from making them, and somehow removed the materials necessary to make them from existence...otherwise there would be a black market for the criminals to get them...and being criminals, they'd get them, and bring them where they were illegal -- sort of how they do it now.

 

Unfortunately guns were invented, they aren't going to be uninvented anytime soon, and any "control" they [the government] pretends to have over them is an illusion, at best.

 

The second a gun was invented, this was inevitable. For further examples of this problem, see Nuclear Fission [ABombs]. The second that was discovered/harnessed, it was just a matter of time before it started to fall into the wrong hands...and this is coming. You can make the materials illegal, the plans to create them illegal, and place sanction after sanction on all Nuclear weapons, and rogue countries like Iran will ignore them all, and still try to create them. It won't be stopped, and it won't be undone.

[Texsox]

While I'm not certain we want to go down the atomic bomb path I will say that the ban on nuclear weapons keeps most countries from helping their allies develop and produce those weapons. Without a ban, you know the Soviets for example would have been further tempted to help out an ally. The UN, as little as the do, at least can offer a legit, recognized, forum to ban countries together against those developmental issues.