The Constitution the second amendment and states rights
Jan 22, 2015 16:51:56 GMT -5
Post by Badger Actual on Jan 22, 2015 16:51:56 GMT -5
First off let me say this has become my opinion over the past few months after reviewing both the US Constitution and applicable case law. I am not an attorney nor am I lawyer.
The more I look around me the more I realize that the second amendment seems to be the most infringed upon even though the language is as clear as it can be "the right of the people to keep and bear arms shall not be infringed". I was visiting my in-laws in California over the holidays and for the past couple of years I had been on my father-in-law about a persons right to keep and bear arms. I won't bore you with the whole story but he is about as far left and a statist as you can get. My mother-in-law had heard our conversations and a few months ago he told her that he now thinks they should get a shotgun. When she told me this a few weeks ago I was quite surprised and was eager to help. California is not the most easy state to purchase a firearm to begin with but my wife and I took her to the store to buy the shotgun. She had never purchased a firearm before so we were there to help her. They made her jump through a few hoops to prove who she was and that she did indeed live at the address listed on her drivers license. Only after she had paid for the shotgun she was informed that she had to wait for 11 days before she could take possession of it. So I thought I would buy the shells and she could give him those on Christmas. Well I found out that I could not purchase ammo in California, the reason stated was I am not a CA resident and do not have a CA issued photo ID. Now this caused me some concern because my rights were not being honored in California. That sent me on a research spree on why and how exactly a state has the right to deny a non-resident the ability to purchase ammo. After my day of research on the issue, I came to the conclusion that it was because they (The State of California) said so.
I began to wonder could a state infringe on other amendments as well. It seems they can if they choose to do so. They way I understand the US Constitution is that if an amendment is written on the issue the Feds nor the states or any subdivision thereof can legislate in those areas. Looking at case law and what some of the founders are quoted as having said, this seems to be true.
“All laws which are repugnant to the Constitution are null and void.” (Marbury vs.Madison, 1803.)
“Every law consistent with the Constitution will have been made in pursuance of the powers granted by it. Every usurpation or law repugnant to it cannot have been made in pursuance of its powers. The latter will be nugatory and void.” (Thomas Jefferson, Elliot, p. 4:187-88.)
“…the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding. In the same manner the states have certain independent power, in which their laws are supreme.” (Alexander Hamilton, Elliot, 2:362.)
“This Constitution, as to the powers therein granted, is constantly to be the supreme law of the land.… It is not the supreme law in the exercise of a power not granted.” (William Davie, Pennsylvania, p. 277.)
“Clearly, a federal law which is contrary to the Constitution is no law at all; it is null, void, invalid. And a Supreme Court decision, which is not a ‘law,’ has no ‘supremacy’—even if it is faithfully interpreting the Constitution. So it is the height of absurdity to claim that a Supreme Court decision that manifestly violates the Constitution is the ‘supreme law of the land.’” (William Jasper)
When state law and federal law conflict, federal law displaces, or preempts, state law, due to the Supremacy Clause of the Constitution. U.S. Const. art. VI., § 2. Preemption applies regardless of whether the conflicting laws come from legislatures, courts, administrative agencies, or constitutions. www.law.cornell.edu/wex/preemption
So it is abundantly clear to me that the states have no business in regulating anything mentioned in the US Constitution. So my question is: 1. How did we get here? 2. How do we fix it? 3. What can we do to make sure this never happens again?
The more I look around me the more I realize that the second amendment seems to be the most infringed upon even though the language is as clear as it can be "the right of the people to keep and bear arms shall not be infringed". I was visiting my in-laws in California over the holidays and for the past couple of years I had been on my father-in-law about a persons right to keep and bear arms. I won't bore you with the whole story but he is about as far left and a statist as you can get. My mother-in-law had heard our conversations and a few months ago he told her that he now thinks they should get a shotgun. When she told me this a few weeks ago I was quite surprised and was eager to help. California is not the most easy state to purchase a firearm to begin with but my wife and I took her to the store to buy the shotgun. She had never purchased a firearm before so we were there to help her. They made her jump through a few hoops to prove who she was and that she did indeed live at the address listed on her drivers license. Only after she had paid for the shotgun she was informed that she had to wait for 11 days before she could take possession of it. So I thought I would buy the shells and she could give him those on Christmas. Well I found out that I could not purchase ammo in California, the reason stated was I am not a CA resident and do not have a CA issued photo ID. Now this caused me some concern because my rights were not being honored in California. That sent me on a research spree on why and how exactly a state has the right to deny a non-resident the ability to purchase ammo. After my day of research on the issue, I came to the conclusion that it was because they (The State of California) said so.
I began to wonder could a state infringe on other amendments as well. It seems they can if they choose to do so. They way I understand the US Constitution is that if an amendment is written on the issue the Feds nor the states or any subdivision thereof can legislate in those areas. Looking at case law and what some of the founders are quoted as having said, this seems to be true.
“All laws which are repugnant to the Constitution are null and void.” (Marbury vs.Madison, 1803.)
“Every law consistent with the Constitution will have been made in pursuance of the powers granted by it. Every usurpation or law repugnant to it cannot have been made in pursuance of its powers. The latter will be nugatory and void.” (Thomas Jefferson, Elliot, p. 4:187-88.)
“…the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding. In the same manner the states have certain independent power, in which their laws are supreme.” (Alexander Hamilton, Elliot, 2:362.)
“This Constitution, as to the powers therein granted, is constantly to be the supreme law of the land.… It is not the supreme law in the exercise of a power not granted.” (William Davie, Pennsylvania, p. 277.)
“Clearly, a federal law which is contrary to the Constitution is no law at all; it is null, void, invalid. And a Supreme Court decision, which is not a ‘law,’ has no ‘supremacy’—even if it is faithfully interpreting the Constitution. So it is the height of absurdity to claim that a Supreme Court decision that manifestly violates the Constitution is the ‘supreme law of the land.’” (William Jasper)
When state law and federal law conflict, federal law displaces, or preempts, state law, due to the Supremacy Clause of the Constitution. U.S. Const. art. VI., § 2. Preemption applies regardless of whether the conflicting laws come from legislatures, courts, administrative agencies, or constitutions. www.law.cornell.edu/wex/preemption
So it is abundantly clear to me that the states have no business in regulating anything mentioned in the US Constitution. So my question is: 1. How did we get here? 2. How do we fix it? 3. What can we do to make sure this never happens again?