New Rant on Old Topic
OK, I'm sorry that this is surely a repeat of previous rants. But I just gotta vent someplace. Please feel free to kill the thread if it's inappropriate.
"A well regulated millitia, being necessary to security of a free state, the right of the people to keep and bear arms shall not be infringed."
I just read through a reminder article about interstate transportation of firearms. For the most part FOPA (Firearms Owners Protection Act) protects people who are transporting firearms across state lines. But only under certain conditions. Gun must be unloaded and locked up in an inaccessible location. Ammunition must be locked up in a separate container and stored in an inaccessible location.
Then comes the kicker: Anyplace in the vehicle is considered to be accessible during a hotel stay! Not hard to imagine that an impound lot or other location where a vehicle involved in an accident might be stored would also be considered to be "accessible". Once the gun in "accessible", local state laws apply.
Thus, when driving through a restrictive state, the restrictions (unconstitutional laws) pose a serious risk to a gun owner in spite of FOPA intention to protect. Such a risk clearly "infringes" the right of the gun owner to keep and bear arms.
How hard is this to understand? "...the right of the people to keep and bear arms SHALL NOT BE INFRINGED (period)." Any state law that creates any risk to a gun owner under such conditions is clearly unconstitutional.
Ok, <<RANT OFF>>
The Bill of Rights originally applied only to the federal government and not state or local governments.
Many articles in the BoR have been legally incorporated against state and lesser governments. The second amendment, in spite of the 9th Circuit ruling and the SCOTUS/Heller ruling, is still not recognized as being incorporated against the states.
Sure, the problem you're pointing out is a serious one. New York State has some pretty strict gun laws and NO reciprocity with any other state on handgun permits. Stopping for the night or getting in an accident could turn you into a felon. That's just plain evil, of course, but until the people demand a change this is what you've got.
NJ used, (and perhaps still does), to make a killing every fall under these exact circumstances. but I'm even more frightened of ceding the federal government control/oversight of this issue. Probably would be a quick way to turn a cold into viral pneumonia ! >MW
Balota, i agree with you 100%! seems as the states are the ones infringing our Constitutional rights. a person should be afforded the right to defend themselves, regardless of what stateline they happen to cross. what i can't understand is how any state can infringe on our constitutional right to own and bear a firearm. IMO, i believe just as you do, any law imposed by any state that infringes our rights is unconstitutional.
I don't go to those states. Problem solved. I live in Ohio if I go west I drive around Illinois. Won't go to New York or kommiefornia or pretty much most of the north eastern sea board. They want to violate my rights then they don't get any of my money. There is only a few of these totally ridiculous places so it isn't that tough to avoid them.
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.
This is what bugs me about the my way or the highway crowd concerning the 2nd amendment. The 2nd amendment did give us the right to keep and bear arms, but since it doesn't specifically address how we do it, it is left up to the states.
Florida allows me to carry concealed providing I pay a fee and meet the requirements. Florida does not allow me to open carry under most circumstances. I am very grateful for what I have, and I don't feel my rights have been infringed under the Bill of Rights. I bear arms on a daily basis. Who cares if I have to do it under the guidelines the people approved?
Florida allows you? The second amendment says it is your natural right and the government shall not infringe. You feel grateful because you have to pay a fee to exercise your rights. What if they charged you a fee so you could speak freely how would you "FEEL" about that? Maybe you should stop feeling and start thinking.
Your free speech argument is flawed, mainly because the 1st amendment is much more specific than the second. Does the 2nd amendment specify firearms, or arms? For all we know the 2nd was drafted referring to pikes and muzzle loading long arms as commonly issued to militia troops and was never intended to include concealable weapons.
Under the 10th amendment subjects not specifically covered in other sections of the Bill of Rights are left up to the states. The 2nd amendment does not specify type of arms, manner of carry, or even whether or not the arms are allowed to expel a projectile. All it says is we have the right to bear arms, which could easily be construed to only include long guns and big sticks.
The 2nd amendment is unbelievably vague, and this is what has led to all the arguments, legal battles, and confusion. It took more than 200 years for the SCOTUS to decide that no municipality had the right to ban any type of firearm approved for civilian ownership. Are you beginning to see why I'm grateful yet? Since the 10th amendment gives the decisions not covered in other amendments to the states and to the people this whole thing could have easily gone the other way.
Am I grateful that Florida allows me as a law abiding citizen to carry a concealed firearm after paying a fee and proving proficiency? I said it before, and I'll say it again. Yes, I am. They certainly didn't have to. They could have put the limit at a 5 inch blade and I would still be bearing arms.
Doc, you need to understand the BoR did not pertain to state legislation, only federal legislation. Some states DID have religious persecution in the past and it was technically legal if abhorrent.
2A says the feds won't infringe on our rights to own arms (and by that, I take it to mean any and all arms) but 10A allows the states to do their own thing, including with regard to arms.
Guarantee against establishment of religion
This provision has been incorporated against the states. See Everson v. Board of Education, 330 U.S. 1 (1947).
Guarantee of free exercise of religion
This provision has been incorporated against the states. See Cantwell v. Connecticut, 310 U.S. 296 (1940).
Guarantee of freedom of speech
This provision has been incorporated against the states. See Gitlow v. New York, 268 U.S. 652 (1925)(dicta).
Guarantee of freedom of the press
This provision has been incorporated against the states. See Near v. Minnesota, 283 U.S. 697 (1931).
Guarantee of freedom of assembly
This provision has been incorporated against the states. See DeJonge v. Oregon, 299 U.S. 353 (1937).
Right to petition for redress of grievances
Incorporation is suggested in Edwards v. South Carolina, 372 U.S. 229 (1963) and is essentially the basis of Romer v. Evans, 517 U.S. 620 (1996).
Guarantee of freedom of expressive association
This right, though not in the words of the first amendment, was first mentioned in the case NAACP v. Alabama, and was at that time applied to the states.
Right to keep and bear arms
This right has been incorporated against the states. See McDonald v. Chicago (2010). Because it is as recent as it is and the ruling was actually somewhat muddled (typical of this court), onerous state laws have not been successfully challenged and nullified. Specifically, the ruling limited the states to the same limits on the federal government. But we all understand that there are to be no limits imposed by the feds, yet there certainly are (NFA, GCA'68). So the notion of incorporation as 1A is incorporated is questionable at best.
Is it right? No. Is it even legal? No.
Freedom from quartering of soldiers
This provision has been incorporated against the states within the jurisdiction of the United States Court of Appeals for the Second Circuit, but has not been incorporated against the states elsewhere.
In 1982, the Second Circuit applied the Third Amendment to the states in Engblom v. Carey. This is a binding authority over Connecticut, New York, and Vermont, but is only a persuasive authority over the remainder of the United States.
The Tenth Circuit has suggested that the right is incorporated because the Bill of Rights explicitly codifies the "fee ownership system developed in English law" through the Third, Fourth, and Fifth Amendments, and the Fourteenth Amendment likewise forbids the states from depriving citizens of their property without due process of law. See United States v. Nichols, 841 F.2d 1485, 1510 n.1 (10th Cir. 1988).
Unreasonable search and seizure
This right has been incorporated against the states by the Supreme Court's decision in Wolf v. Colorado, 338 U.S. 25 (1949)
The remedy of exclusion of unlawfully seized evidence, the Exclusionary rule, has been incorporated against the states. See Mapp v. Ohio, 367 U.S. 643 (1961). In Mapp, the Court overruled Wolf v. Colorado, 338 U.S. 25 (1949), in which the Court had ruled that while the Fourth Amendment applied to the states (meaning that they were bound not to engage in unreasonable searches and seizures), the exclusionary rule did not (meaning that they were free to fashion other remedies for criminal defendants whose possessions had been illegally seized by the police in violation of the Fourth Amendment).
The various warrant requirements have been incorporated against the states. See Aguilar v. Texas, 378 U.S. 108 (1964).
The standards for judging whether a search or seizure undertaken without a warrant was "unreasonable" also have been incorporated against the states. See Ker v. California, 374 U.S. 23 (1963).
Right to indictment by a grand jury
This right has been held not to be incorporated against the states. See Hurtado v. California, 110 U.S. 516 (1884).
Protection against double jeopardy
This right has been incorporated against the states. See Benton v. Maryland, 395 U.S. 784 (1969).
Constitutional privilege against self-incrimination
This right has been incorporated against the states. See Malloy v. Hogan, 378 U.S. 1 (1964).
Protection against taking of private property without just compensation
This right has been incorporated against the states. See Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897).
Right to a speedy trial
This right has been incorporated against the states. See Klopfer v. North Carolina, 386 U.S. 213 (1967).
Right to a public trial
This right has been incorporated against the states. See In re Oliver, 333 U.S. 257 (1948).
Right to trial by impartial jury
This right has been incorporated against the states. See Duncan v. Louisiana, 391 U.S. 145 (1968). However, the size of the jury, as well as the requirement that it unanimously reach its verdict, vary between federal and state courts. Even so, the Supreme Court has ruled that a jury in a criminal case may have as few as six members. Williams v. Florida, 399 U.S. 78 (1970). If there are twelve, only nine jurors need agree on a verdict. Furthermore, there is no right to a jury trial in juvenile delinquency proceedings held in state court. See McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
Right to a jury selected from residents of the state and district where the crime occurred
This right has not been incorporated against the states. See Caudill v. Scott, 857 F.2d 344 (6th Cir. 1988); Cook v. Morrill, 783 F.2d 593 (5th Cir. 1986); Zicarelli v. Dietz, 633 F.2d 312 (3d Cir. 1980).
Right to notice of accusations
This right has been incorporated against the states. See In re Oliver, 333 U.S. 257 (1948).
Right to confront adverse witnesses
This right has been incorporated against the states. See Pointer v. Texas, 380 U.S. 400 (1965).
Right to compulsory process (subpoenas) to obtain witness testimony
This right has been incorporated against the states. See Washington v. Texas, 388 U.S. 14 (1967).
Right to assistance of counsel
This right has been incorporated against the states. See Gideon v. Wainwright, 372 U.S. 335 (1963). In subsequent decisions, the Court extended the right to counsel to any case in which a jail sentence is imposed.
Right to jury trial in civil cases
This right has been held not to be incorporated against the states. See Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916).
This clause has been applied to the states. See The Justices v. Murray, 76 U.S. 9 Wall. 274 (1869).
Protection against "excessive bail"
This provision may have been incorporated against the states. In Schilb v. Kuebel, 404 U.S. 357 (1971), the Court stated in dicta: "Bail, of course, is basic to our system of law, and the Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment." In Murphy v. Hunt, 455 U.S. 478 (1982), the Court did not reach the issue because the case was dismissed as moot. Bail was included in the list of incorporated rights in McDonald footnote 12, citing Schilb.
Protection against "excessive fines"
This provision has not been incorporated.
Protection against "cruel and unusual punishments"
This provision has been incorporated against the states. See Robinson v. California, 370 U.S. 660 (1962). This holding has led the Court to suggest, in dicta, that the excessive bail and excessive fines protections have also been incorporated. See Baze v. Rees, 128 S. Ct. 1520, 1529 (2008).
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