Yes and no. That is all that they were asked to specifically rule on in Heller, but the majority opinion went a lot further than that in reaching the necessary conclusion.

This.

I'll throw in my two cents.. I'm no constitutional scholar and I by NO MEANS support ANY new gun legislation. But since many states like CA and CT already have state AWB's, it seems clear that states can infringe on our 2nd amendment rights. I plan to be at my state capital this Saturday to make my voice heard, I hope all of you do too..

No, it is a Human right.  I can defend myself with what is available, AR's are produced at a magnificent rate, I should be able to own one with absolutely no second thought.

I disagree.    Shall not be infringed means exactly that.

Lets start with the last sentence in the paragraph that starts with "We the people" and ends in "we establish this Constitution for the "United States of America". The key here is United States, not congress or federal gov.

Now we can go to the 1st amendment that starts with "congress shall make no law" and you see this wording in other areas as well.

Lets jump to Amendment 10 "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."

The Constitution applies to all states that are part of the United States, the states do not have the power to override the Constitution. It's explained in 10 above.

These pocket Constitutions come in handy, pick up a few, pass them out, and keep a couple for yourself.

OP, Molon Mycock.

I agree with your interpretation of the amendment. However, that means nothing unless those that are protected by it stand up for it.

You can claim the right to bear arms is a natural right (and I will agree with you), but a natural right means nothing. A natural right can easily be taken away if it is not fought for. What I am getting at is that any interpretation of a natural right can and will be infringed unless it is protected by forces of power.

The states and fed infringe because we let them, heck we even condone and support them in many places, by we I don't mean you or me of course, but many others do.
It's the old "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." thing.
We allowed it to happen to ourselves, we failed to use the checks and balances we have been provided and now we are starting to pay the price.

The right of The People shall not be infringed.
This does not confer ANY power to either the Federal government OR the States.

It is up to people with standing in CA and CT to challenge those laws in Federal court, then appeal up to SCOTUS as necessary. SCOTUS doesn't just intervene whenever they feel like it, and nor should they. D.C. and Chicago had infringed on 2A rights too until Heller and McDonald dragged them through the court system.

As Gura noted during the McDonald oral arguments "States may have grown accustomed to violating the rights of American citizens, but that does not bootstrap those violations into something that is constitutional."

This.

The States can not override the Bill of Rights and the 2nd Amendment says the above. NY's law is UnConstitutional, period.

Did you wake up today wanting to get repeatedly kicked in the nuts - or did you honestly expect a different reaction?

IMO states should not be able to restrict 2nd amendment rights, just as they can't infringe on 1st amendment rights.

It also violates their state constitution.

You are correct.  The 2nd Amendment was only intended to apply to the national government.  There is nothing in the law or its legislative history which suggests otherwise.  The amount of powers any State held before ratifying the Constitution were infinite, with only those powers explicitly proscribed actually being surrendered by the States.

Regarding the 14th Amendment, the ruling which "incorporates" the 2nd Amendment is based on bad law, which consists of court rulings which are entirely contrary to the legislative history, intent, and wording of the 14th Amendment; they fabricated incorproation theory out of thin air and are just a contrary to the law as laws passed by Congress infringing on the RKBA.  It is noteworthy that such legal theories embodied in rulings have both increased the power of the courts and of the national government in general while diminshing the powers of the States.

The battle really needs to be at the State level to combat State laws.  The RKBA needs to be enshrined in State Contitutions in a very explicit manner that leaves no room for gun controul laws.  A principled battle at a national level would seek to amend the Constitution to prohibit violating the RKBA on the part of the States, although much caution would need to be taken, because amendments of this sort have been used to crush federalism, past and present, and the national government can end up violating rights in the name of protecting them (such as in the case of the Civil Rights Act of the 1960s, which goes beyond the bounds of the Constitution).  The national government cannot be entrusted as the protector of our rights; I don't see how our history can make that any more clear.  

The problem faced in the States is democracy.  The majority gets what it wants, or what its representatives think it wants.  No matter what you put in a Constitution, it cannot stand up to democratism; even our rights can be steamrolled.  There is nothing inherently liberal about democracy; it is more often hostile to liberty than friendly towards it, and we have seen this time and time again in this country and other countries.  Democracy has also been applied to State constitutional amendment; protections can be wiped away by majority vote.  It's happened in some States that used to have the RKBA enshrined in their constitutions, sometimes in very stringent language (like the 2nd Amendment, as opposed to those provisions that leave open tons of room for infringement).  It's a conversation almost no one in this country is willing to have, and democratism has achieved a sort of cult-like status in the public consciousness; even most Republicans believe so strongly in the form of government that has been a harbinger of our loss of liberty.

No, it doesn't say that.  Neither do the words of its framers.  The 14th Amendment was intended to have a very limited function and would not have been ratified otherwise.

This!

Which is all swept aside in the name of democracy and progress, the obsessions of our age.  They are held as sacrosanct, unlike any obstructing part of a constitution or charter.

The OP is wrong and needs to read the entire constitution and the history that goes along with it.

DaFuq?

This here is why we can't have nice things... thinkers and their interpretations of plain fucking English.  Well, gee, maybe it's ok.  The fuck it is.

Not legitimately, barring certain exceptions (such as punishment for crimes; it would be impossible to punish anyone without infringing upon rights; it's what makes it punishment).  But in practice, yes they can be violated.  At that point the discussion goes beyond the law and into the moral realm; certainly if a government becomes destructive of the ends for its creation (which can be the protection of natural rights), one can make a case for altering or abolishing it (my language should be familiar).  Of course, a full-blown conversation on that point would probably get people in trouble, especially considering what has been done to effect such (or attempt it) in the history of the English-speaking peoples (Rhodesia's rebellion, the War Between the States, the American War of Independence, the Glorious Revolution, etc.).

Of course, there are many people, including a number of people here, who would deny natural law theory, especially non-Enlightenment natural law theory (such as that of St. Thomas Aquinas).  Such philosophies and theories no longer reside in the hearts and minds of most Americans.

IMO...

Originally, the Bill of Rights was mostly understood to be prohibitions on the federal sovereign, as pre-civil war the States and their respective Constitutions were considered enormously more sovereign than they are today.  This was later affirmed in early Supreme Court rulings.  

Post Civil War a few radical amendments were established to prevent States from deny rights to there people. Mainly the 13th, 14th, and 15th amendments. Which during debates it was very clear the framers intentions were to establish the entirety of the bill of rights, and prohibitions on federal government, would also be extended to the various State governments.  However, after ratifying, which southern states were essentially forced to comply, the radical republicans of the civil war era phased out and a more economically-minded Republican party started to take form which was more concerned with labor strikes and so on.

The first Supreme Court case to really look at the issue of the 14th amendment was the Slaughter House cases.  Primarily an intra-state economic matter, the SC slammed the plaintiff and their argument down and is thought to have "gutted" the 14th amendment from it's original intent. I wrote a college essay on this (wish I still had these) that this is not actually the case, as the Supreme Court ruled that the "privileges and immunities" clause protected citizens of "federal rights", but it did not apply to "states rights" which was what the case was concerning. Still though, the interpretation of the interpretation was set into place and for a very long period this issue went ignored, and States were mostly able to draft laws and regulations to their hearts content.

In the early 20th century, the Supreme Court began hearing many cases of States denying them rights affirmed by the Bill of Rights.  Rather than looking at the privileges and immunities clause of the 14th ammendment, as due to the doctrine of Stare Decisis (and their interpretation of the interpretation) they couldn't, they instead looked at the Due Process clause of the 14th Amendment.  This became known as doctrine of Incorporation, or Selective Incorporation, as the Supreme Court would incorporate these states as they heard cases that had "standing" (i'm going to have to use a lot of quotes on these terms).

So one by one by each right affirmed by the Constitution was applied to the States. Which left the obvious outlier they Supreme Court did not want to touch after the gun control movement kicked up steam in the 1960s.  So the Second amendment became the last (arguable..) amendment to be incorporated to the States.  

The Supreme Court finally accepted a case in DC versus Hellar, which established the right, and the McDonald incorporated into the States, as DC was not a State.  

However, there are important points to recognize in these two cases.

I would argue that the original intent of the second ammendment was to establish the right to bear arms for militia duty.  The militia being the body politic coming together with their own arms, voting their own officers, and answering to the laws of the executive power.  Their own weapons was a key point to the framers, hence "keep and bear arms" being a key point to the ammendment. This was an important common law doctrine inherited from British common law, that allowed for a check on the sovereigns power directly by the people.  This was as we know defined by the US Code at the time to be "all abled bodied men" etc. etc.   But it was important point to stress that the suppression of rebellions and, in many cases, the common defense, was performed directly by the people, voting their own officers who would carry the orders of the executive branch.  As for obvious reasons, it was understood by them, a rebellion could carry legitimacy and the moral high ground against the actions of their sovereign entity.  So the people directly were an important check on that sovereigns power during times of insurrection.  

To understand this concept further, I would recommend the Radicalism of the American Revolution by Gordon S. Wood. That much of their understanding of good government wasn't just rights and liberties, but for allowing good citizens concerned for their duty to their community and society to be allowed to perform and take part in government.  A key point to their ideology rests in the declaration of independence, which about half the listed grievances were of course tyrannical actions they saw of their king (soveriegn entity), but about half of the other listed grievances were actually actions that the King prevented them from performing.  That they wanted to take part in the governance in their political system, but their system had disallowed them from doing what they thought was their duty.

In relation specifically to the second amendment, we need to look no further than Federalist 46 written by James Madison, author of the second amendment.  Who expressed his thoughts on civilian ownership of arms and how that equated with militia duty.  We can even see a rudimentary quantitative statistical analysis of civilian ownership of arms under the sociological concept of "freedom of tyranny". This being written about a hundred years before Freud.  

This, and virtually every other writing of the framers of the Constitution, and their contemporaries, shows a universal understanding that the amendment was to protect the ability for civilians to own the same standard weaponry that the standing army would have.  This was, in fact, related to militia duty, as it was a duty to maintain proficiency in these arms, not just a right.  

There were in fact many prohibitions on weaponry during the time of the framing of the Constitution (sword canes, dirks, daggers, etc) that were meant to repel robbers, bandits, pirates, etc.  But the right and duty to keep and bear arms meant for military service was the guaranteed right.  

Now back to the Supreme Court, US vs Miller on the subject of NFA weapons essentially ruled that the second amendment only applied to military weapons, thus the defendant's sawed off shotgun did not apply (ignoring the fact that many armies use shotguns and the actual law mainly applied to military weapons, but in any case...).  Many lower courts began ruling that their interpretation of the interpretation meant the amendment was a "collective right" and we started getting a whole bunch of nonsense added to the "debate" during the second half of the 20th century.

Hellar and McDonald did not really clarify this issue. They ruled that the right extended to "ownership of arms not connected to militia duty" and upheld "long standing prohibitions" that may mean to apply to automatic weapons.  While many cheered during the reaffirmation that the right was an individual right. It did not quite address the original intent that arms were intended for militia, or military, service.  And instead, upheld many of these prohibitions such as automatic weapons.  You could even argue that extending the right to self defense and hunting applications was activist judging, as the original intent was clearly the individual right on keeping and carrying military arms, not self defense nor sporting.

I would argue from an original intent standpoint, the right could be narrowed down (in a modern age of nuclear weapons, biowarfare, etc.) to a reading of Fed 46. The basic right is for civilian ownership of the standard arms of the modern infantry soldier.  Today that would be the standard assault rifle capable of selective fire from single fire to automatic fire, and could conservatively prohibit heavier machine guns.  So already due to the NFA and Hughes amendment, we have a second amendment at odds with the original intent.  It remains to be seen what an AWB would mean in age of Hellar and McDonald, the one savior may be that these arms are in "common use at the time". However, as we have seen, these things can literally takes hundreds of years to address by the Supreme Court.  

It may come that the advancements in technology might mean that in a modern age that the standard infantry soldiers' weapons should not responsibly be guaranteed to the people. Especially in an age of drones and etc. And if this does become the case the Constitution does allow for amendments with a super majority in congress and 3/4ths of the States.  But for now, we already have an interpretation of the second amendment more limited than the time of it's founding, and it may become even more limited, and this was unfortunately not addressed by Hellar and McDonald.  

Add on: sorry for the rant.  These are disturbing times and I needed a place to vent.

The privileges and immunities clause does not say that the Bill of Rights shall be applied to the States.  It is a term of art (which appears in the original constitution, btw) with a limited legal meaning and it is also borrowed from the Civil Rights bill that the 14th Amendment was meant to constitutionalize (which itself had limited objectives); it refers to things such as the writ of habeus corpus; taking, holding and disposing of real property; inequal levying of taxes or other impositions upon citizens; instituting and maintaining actions of any kind in state courts; liberty inthe common law sense (right to travel and change residency freely); general protection of the citizen (in property, safety, etc.); ability to have one's contracts enforced by the government; etc.  Corfield vs. Coryell has an enumeration like the above (other cases, before and after, discuss the matter; this one is an antebellum case), except that it, unlike other cases, laws, etc., includes suffrage to a limited degree (which the framers of the 14th Amendment explicitly stated was not something they considered covered by P&I as they used the term; the usage in the aforementioned case is rather anomalous in this regard).  Essentially, the clause was meant to protect newly-emancipated persons from denial of access to the courts, lack of protection of property, contracts, etc., discrimination in taxes or on laws that impose upon citizens, etc. as had been occurring as a result of the post-war Black Codes.

No. The 2nd Amendment is simply an affirmation of our God-given, natural right to self-defense. Even if the 2nd were to be repealed, it still would not invalidate our RKBA.

It was fought because some States no longer wanted to remain in the Union while others wanted to force them to remain.  Slavery was quite legal and recognized by the Constitution as such, so it wasn't "some States doing whatever they wanted."  They felt they were being imposed upon by the other States and felt that their rights as States were being threatened; of course, slavery was one of the principal issues where there was conflict in this regard, but as I said, it was legal under the contemporary Constitution.

i know.. i know...

Do you mean constitutional as in the founders wouldn't shoot people in the face over it? Or constitutional as in the USSC might let us get fucked?

Is that legislation or part of the constitution?  I think it's generally recognized that new legislation, lawfully passed, overrides conflicting portions of older legislation.  If part of the constitution, then it is clear that NY has long ignored that part of the constitution, so I don't see why this is special in that regard; it is just more of what has been the standing practice.

In the absence of application to the States, it cannot be assumed that it is a prohibition against them, and the legislative history does not support the notion of applicability to the States.  Certainly when something has been intended to apply to the States, it has been explicitly said so, and I don't see why such an old legal principle should not be applied to the 2nd Amendment.

Would you have the same opinion if you were referring to NC rather than NY. Case and point. You are welcome for the wake up call.

This seems to be pretty clear - their own fucking law.



Backed up by the 2A.



Now , just need a judge to see it that way.......





 

More imporantly, in the legal sense, the power to infringe upon the RKBA is not granted to the national government in the original constitution or in any amendments subsequent to the 2nd (which would override it if they existed). The 2A is an additional protection; the first is the legal principle that powers not granted are not held.

There is no real evidence to suggest that incorporation of the BoR was the intent of the framers of the 14th Amendment; there is plenty of evidence to the contrary, however.  The radicals wanted to go much farther and it is clear if one reads their proposals, although even some of them were unwilling to go as far as the courts have said the 14th Amendment extends; ultimately, the radicals were in the minority, resulting in the adoption of a much more limited amendment.

Regarding what you said about the 2nd Amendment itself, while State or local laws restricting weapons, regulating storaget of gunpowder, etc. did exist, they were not national laws, as the pre-BoR constitution did not confer a power on Congress to pass such laws.  I think Heller is erroneous in permitting restrictions by the national government on such grounds.  The 2nd Amendment also does not limit itself in terms of classes of arms; it simply says "arms," and certainly arms other than small arms were essential to the security of a free state (and an effective militia), such as the "king of battle," artillery.  It is also does not give any qualifier to "shall not be infringed;" it uses very absolute language.

It would seem to me that a desire to recognize a limited RKBA existed by members of SCOTUS, that there was a desire not to upset a wide array of gun controul laws, and a need to get the swing vote to their side, and the end having been determined, the means were written into the ruling to secure it; an "ends justify the means" approach, rather than a faithful application of the law, seems to be the norm from the courts rather than the exception, and Scalia proved himself no exception in this regard.  This is how reams of bad law has been created by the courts.

I would also not over-utilize the DoI; it is better to look at the arguments predating it on the part of the Founders.  The DoI seems to be oriented towards appealing to the popular ideas in France to gain French support, rather than relying on old English arguments in support of secession, such as British constitutional principles and the principles of the Glorious Revolution (although they are not totally ignored in the document); Locke did not exactly hold the sway portrayed today in the thinking of the Founders, and many had never read any of his works (Jefferson had, however, and Frankling even accused him of plagiarising Locke's 2nd Treatise on Government).  Ultimately, it was Parliament most argued against before the war, and appeals were made to the King to reign them in (which he constitutionally could do; he ignored them, though).  Parliament was exceeding its legislative powers in levying taxes directly on the colonists (rather than on trade with other parts of the empire or other countries); the colonial charters gave that power to colonial legislatures.  The King was simply enforcing Parliament's will, although I do recall a couple of instnces where he was not pleased with the laws Parliament was passing with regard to the colonies.  The King had a duty to protect the colonies (whose charters recognized him as sovereign and as such a protector) and he did not fulfill his duties and even facilitated Parliament's unlawful acts and tyranny.

When Texas tried to secede, didn't SCOTUS rule that the union is permanent & states can't opt out?
If so, then how is NY opting out of the 2A?
If NY can opt out of the Amendments that the scum in office don't like, then why is the .gov bothering states about voter ID laws?
What happens if a state wants to opt out of the 1A, 4A, or 5A because it is no longer convenient?

Can the state take away your right of free speech, religion, due process, and right of a jury ? Nope.

2nd is the same.

The bill of rights cannot be infringed by either state or federal.

Think of the Heller case and McDonald cases ? The USSC already settled the matter.

I am aware of no such case, but just because SCOTUS rules a certain way does not make the ruling in keeping with the law.  SCOTUS has made tons of rulings contrary to the Constitution in the 20th century.  Regarding secession, it is not actually prohibited by the Constitution, and the seceding States were not kept in the Union by the courts but by force of arms, which has the practical effect of trumping law if it is of sufficient strength.

As far as the 2nd Amendment goes, it never applied to NY, so there is nothing for NY to opt out of.  None of the prohibitions in the BoR apply to the States, NY not being excepted from that grouping.

In regards to the national government cracking down on State ID requirements, it is exceeding its powers, which it claims through the amendment and the court cases regarding it that are used for incorporation.

Except for due process, yes, a State can get rid of those things, provided its constitution permits it (or embodies it).  The BoR protects a right to a grand jury, and yet many States (including mine) do not have grand juries or allow for an information to be filed in lieu of a grand jury indictment.  Not all States have used 12-man juries at all times.  Many States had laws for a long time prohibiting blasphemy; Massachusetts had a state religion long after the 1st Amendment was ratified and I believe even after ratification of the 14th.

The SCOTUS is not absolute, and its will does not override the Constitution; to say otherwise is to claim it can amend the constitution by fiat.  McDonald is certainly based upon bad law.

The rest of what I said stands regarding secession and the inapplicability to this case (NY and its AWB).  There is substantial evidence in opposition to the nationalist theory.  But to avoid digressing, the point is that the 2nd Amendment does not apply to the State of New York.  There is nothing for it to opt out of.  What you posted is a law within New York, which NY is free to repeal.  I'm still curious whether or not it is a part of the constitution, as if it is not it is no real obstacle to AWBs, since new legislation normally overrides older legislation (a good example of how rights cannot stand in such an environment is Britain, as laws passed by Parliament effectively amend their unwritten constitution, including overriding the English Bill of Rights).

So following that logic, NY is free to repeal or ignore this;



or this;



and there is no violation of the Constitution?

No, because those are not parts of the U.S. Constitution.

So this isn't real?

The use of the same wording does not make them the same laws.  One is part of the national constitution and applies to the national government while the other is a State law which applies within NY.  You cited NY law in your previous post, not the U.S. Constitution.

OK, but my point is, what if the legislature decided that getting search warrants was too much of a PITA so they eliminated that little part of the state law & then had JBT's kick down doors, seize any contraband they could find, & then drag people off to jail (& then into court)?
Would the .gov say that was perfectly legal & there was no violation?
Are you saying that those people would have no recourse?

How does a politician get a way to beat the 2nd , by going to arf.com and asking!

Haven't seen you around in a while.