CA - CA - California and 2nd Amendment

[Old Fashioned]

Found something interesting on the 2nd Amendment Foundation web site. Article III, Section I of the California Constitution reads: "The state of California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the land." How can there be any question about the 2nd Amendment applying to California after the Heller decision? The California Constitution acknowledges that California is inseparable from the United States and acknowledges that the US Constitution is the supreme law of the land? In view of this it seems to me that the issue of incorporation of the 2nd Amendment is irrelevant in regards to California. :D :D :D

http://www.saf.org/default.asp?p=rkba_protections

[Rich-D]

DC is a Federal District that essentially banned handguns for the average citizen. California is a State that has not banned handguns. The Supreme Court, ruled in 1833, in Barron va. Baltimore, that the Bill of Rights was written to apply directly only to the federal government. The Court has never disturbed that ruling, so no part of the Bill of Rights, by its own terms, applies to states, counties and cities. However the Court has agreed to hear the case of— McDonald va. City of Chicago (08-1521) which may decide the issue.

http://www.scotusblog.com/wp/analys...row/#more-11356

[Old Fashioned]

Rich-D, the 2nd Amendment Foundation had a list of states that have a RKBA provision in the state constitution and a list of states that do not have a RKBA provision in their constitution. California is one with no RKBA provision. However, their constitution recognizes that California is inseparable from the United States and states that the US Constitution is the law of the land. The 2nd Amendment being part of the Constitution, I was making the point that the California Constitution apparently recognizes the 2nd Amendment as applying to them. Even though SCOTUS has as yet to incorporate the 2nd under the provisions of the 14th, if a state recognizes the 2nd as applying to them, the effect is the same, in that one state. Of course, lawyers would argue and try to twist the meaning of the California Constitution. Yes, I realize that California restrictive firearm laws are not the same as the Chicago complete handgun ban. Of course, I realize that this is all common sense speak and not legal speak.

[Old Fashioned]

Rich-D, what amazes me about all of this is how every one wants to pick through the US Constitution and decide what provisions they want to follow and what provisions they want to ignore. We started out with a constitution. The constitution was amended several times. The amendments became part of the constitution. Certainly, the constitution applies to the united states government. The people are the united states. The people are also the states. Remove the people and you not only have no states but you also have no united states. Seems pretty simple to me. I believe there was a conspiracy by the founding fathers. They created the constitution to protect the people but realized in the process that they were making it too easy for future generations so they created our legal system to drive us crazy. :butthead: :butthead: :butthead: :) :)

[Rich-D]

The real shame is that Common Sense is not the basis for our legal system!

[Dial 1911 for Help]

"The Supreme Court, ruled in 1833, in Barron va. Baltimore, that the Bill of Rights was written to apply directly only to the federal government. The Court has never disturbed that ruling, so no part of the Bill of Rights, by its own terms, applies to states, counties and cities."

Barron was pre-14th amendment. Plus, as you know, most of the BOR has in fact been found to be binding on the states. Try denying First Amendment rights as a state government and see how far you get, and it's not worded as unequivocally as the Second. Course, like Old Fashioned says, we're speaking common sense here, so it probably won't fly in court.

[Old Fashioned]

Does the Barron V. Baltimore ruling mean that a state MAY NOT apply the BOR or that it CANNOT BE FORCED to apply the BOR? The wording of the California Constitution seems to imply that it is willfully applying the BOR to the state.

[Dial 1911 for Help]

It says the BOR cannot be enforced upon the states by federal courts. But it was before the 14th amendment, which is relevant, and also before numerous SCOTUS decisions found various civil rights enumerated in the BOR to be binding upon state governments, under incorporation.

[Dial 1911 for Help]

Civil rights ruling are kind of a good news/bad news story.

"The good news is, the Fourth Amendment applies to and limits state and local governments."

"The bad news is, we tried really really hard, and we can't think of a search we don't find 'reasonable' ".

[DoubleTap45]

The 14th DOES bind the States to the BOR on many issues. The trick is to sell this to the SCOTUS. If it works then the States ARE bound to the BOR and the RKBA.

-Ray

[Aguila Blanca]

Rich-D, the 2nd Amendment Foundation had a list of states that have a RKBA provision in the state constitution and a list of states that do not have a RKBA provision in their constitution. California is one with no RKBA provision. However, their constitution recognizes that California is inseparable from the United States and states that the US Constitution is the law of the land. The 2nd Amendment being part of the Constitution, I was making the point that the California Constitution apparently recognizes the 2nd Amendment as applying to them. Even though SCOTUS has as yet to incorporate the 2nd under the provisions of the 14th, if a state recognizes the 2nd as applying to them, the effect is the same, in that one state. Of course, lawyers would argue and try to twist the meaning of the California Constitution. Yes, I realize that California restrictive firearm laws are not the same as the Chicago complete handgun ban. Of course, I realize that this is all common sense speak and not legal speak.
Recognizing that the national Constitution is the supreme law of the land does not in any way cause that Constitution to say something it does not say. If (and please note I said "if") the Bill of Rights applies only to the Federal Government, then all California's recognition of it as the supreme law of the land does is acknowledge that the Federal Government is constrained by it. It would have no bearing on California, whether or not California had that language in its state constitution.

That's what the whole flap about "incorporation" is about -- to determine whether or not the 2nd Amendment does apply to the states.

[DoubleTap45]

I recall in Constitutional Law class that the purpose of the 14th was to bind ALL the states to certain provisions of the B of R, but not in toto. Over time the SCOTUS has in fact bound the states to many provisions of the B of R such as the 1st, 4th, 5th and 6th Amendments or at least significant aspects of them.

It is high time and long overdue for the Supremes to acknowledge the existence of the RKBA as a FULLY protected Constitutional protection and bind the entire Union to it.

Ray
:dead_hors

[Dial 1911 for Help]

Well, at this late date Barron should certainly not be an obstacle.

[DoubleTap45]

Barron?

-Ray

[Dial 1911 for Help]

Barron v. Baltimore (1833) -- BOR not binding on states.

Shouldn't be binding because it predates the 14th Amendment and lots of cases specifically incorporating various amendments against the states.

[Old Fashioned]

I understand what you are all saying. In light of SCOTUS rulings over the years, including the Heller decision, there is no substitute for incorporation of 2A through the 14thA. Heller recognized 2A but only in regards to federal law and federal enclaves such as DC. Without incorporation, the individual states cannot be required to comply with the 2nd Amendment. What I was suggesting for the sake of discussion is that despite the fact that the CA Constitution does not have a 2nd Amendment provision in it, it does recognize that the US Constitution is the supreme law of the land (does not distinguish between entire US and federal enclaves or federal versus state law). As such, and including the Amendments to the US Constitution as part of the constitution, it would seem that the California Constitution recognizes the 2nd Amendment. I am talking about voluntarily as opposed to federally mandated. Until incorporation of 2A, that argument might be possible and could allow 2A arguments against the more restrictive laws in CA. Heck, while I am dreaming, how about this. In light of the shootings at Ft. Hood, would a military base be considered a federal enclave, just as DC is? If so , that could really be interesting. :eb: :eb: :eb: :D :D :D

[Patriotic]

Unless things have changed since I was in the US military, there was never a restriction on the ownership of a firearm; you did have to register it. If you lived in the barracks, you could not keep it in your locker and it did have to be locked up in the arms room. I don’t know about on base family housing but I can check that out.

[Old Fashioned]

Patriotic, you are correct, it was the same when I was in. I was refering to the fact that Clinton, as president, apparently passed or created some regulation that banned the carrying of firearms on military bases unless participating in training that required the use of firearms. After the Ft. Hood shooting, many were surprised to learn that the military is not normally carrying weapons on military bases (when they are, except for MP's, they have no ammunition unless they are on a firing range) and were questioning the fact that the victims were defenseless. Since the Heller decision determined that the 2A applied to federal law and federal enclaves, would a military base be considered a federal enclave the same as DC and if so, what would the Heller decision do to the ban on carrying firearms on base since that ban obviously prevented the victims from any possibility of defending themselves against that attack?

[Patriotic]

In effect, the Heller decision would make it legal to carry for self defense on a military base but we know the military can and does restrict some rights of military personnel. I think civilians working on a military base would be exempt except for maybe terms of employment. In the case of Ft. Hood, lives could have been saved if others were armed.

[Old Fashioned]

In theory it would, but in reality, when you enter the military you give up a lot of rights and are really governed by military regulations and the UCMJ. Civilians would probably be governed by terms of employment as Patriotic stated. I just tossed it out for comment. In reality, despite what happened at Ft,. Hood, I don't expect to see the military be allowed to carry private weapons around on base any time soon.