I was just sitting here, thinking about all these damned gun laws that are so clearly unconstitutional, and suddenly it hit me:  A TACTIC, by gum!

So, for your amusement, approval, disapproval, or whatever, here's a concept for a legal tactic that just MIGHT be successful in getting some state laws declared unconstitutional, null, and void.

In the simple form, ask this question:  If a particular state (say California) were to pass a law outlawing the worship of any particular religion,  would it be upheld as constitutional?

What if California outlawed freedom of speech?
Same question.

In these cases, it's clear that these activities would directly violate the first Amendment of the Bill of Rights.

The Second Amendment can not be construed in any way to be a 'bastard stepchild' of the Bill of Rights.  ALL of these rights hold equal footing in our laws, which is to say, they are unassailable by Constitutional deeclaration.

So, how can California (or any state) pass laws that infringe upon a guaranteed Constitutional right, no matter what that right is?

The premise to follow is that of equality of the rights set forth in the Constitution and BOR. How can they infringe upon ANY of them legally?

The challenge to the judge or jury is to have THEM prove that the Second Amendment was somehow written as secondary or subordinate to the other amendments.   Clearly, this will be an impossible feat on their part.

You could easily argue that the position of the Second Amendment, being second ONLY to freedom of speech and religion, by itself signifies its importance.  The BOR is a prioritized list, with the most important rights listed first, but all are so important that they must not be infringed for any reason.

That's the concept.   Anyone want to try to run with it?

CJ

It has been tried. The problem is that the 1st amendment is restricted. For example, we cannot "peacefully assemble for redress of greivances." That requires a Permit. Is this a violation of the 1st. Hell Yes. Same goes for the 2nd. But, first we would have to get the other law overturned, so we would have footing for challanging Gun Laws.

There's one more little problem: the BOR's are not automatically considered to be guaranteed individual rights, per se. Rather, the SC has held that this is to be determined on a case-by-case basis. Thus, the 2nd has yet to receive its day in court. As well, it has long been upheld that rights are not absolute (e.g. not OK to falsely scream "fire" in a crowded room), so restrictions [b]do[/b] apply. What form & degree particular restrictions take is another matter altogether.

Regarding the upcoming 'Emerson' case, I won't hold my breath that it will even be entertained. But assuming it is, and that it is ruled to be an individual right, I expect a [i]very[/i] narrow ruling, such that the issue of restrictions will [i]not[/i] be discussed. In such a scenario, don't expect too many of the current restrictions to become null & void.

Hate to burst someone's bubble. Welcome to the wonderful, wacky world of American justice.

There is a self protecting "tactic" built into the Constitution/BOR. It would be very effective if most people knew about it: [url]http://www.fija.org/abbrhope.htm[/url]

Ok, in Calistan the people voted to legalized marijuana for medicinal purposes, the Feds said No Way and they raided the Cannabis clubs because it went against Federal Laws.

I thnk I read about this, but in Oregon they legalized doctor assisted suicide, but then again the Feds came in and said no way and were threating to bust doctors.

If they can do this, can't we use this as a precedent for our 2nd Amendment?

Most people do not realize this, but the Second Amendment does not apply to the states. The Bill of Rights was required by the states before the Constitution would be ratified. The first 10 amendments ("Bill of Rights") are limitations of FEDERAL power. Not limitations of states' power. Back then, the citizens of each state were concerned that the new federal government would become tyranical like the English monarchy. So the states demanded that the federal powers be limited. The second amendment is meant to preclude the federal government from limiting the state's right to bear arms. (So that the states could rebel against federal troops if necessary).

Some of the first 10 Amendments have been held to apply to the states through the 14th Amendment, but the Second Amendment has not.

The following is a quote from the federal court in the fourth circuit:

Love v. Pepersack, 47 F.3d 120 C.A.4 (Md.),1995. Decided Feb. 3, 1995.

"The Second Amendment does not apply to the states. Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886); *124 United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876)."

The case deals with an individual's claim that the state of Maryland infringed upon a his Second Amendment rights. Although the issue of the application of the Second Amendment to the states has not reached the Supreme Court, I believe that most circuits have held as above.

What saves most of our gun rights is each individual state's constitution. All states have their own constitution. Most of them have a similar amendment as the federal second amendment. They vary slightly. If I recall correctly, some even identify a person's right to bear arms for self protection. Do an internet search for your state's constitution and you will see the language.

The bottom line is that, right now, depending on the states' constitution, it may be able to ban guns completely. (Look at the D.C. and NY City complete ban of hand guns).

This stuff gets pretty tricky. Do a little research and you will be amazed at what you can find.

You're right, I search for the Caliban consitution and under the Declaration of Rights, there was no mention of bearing arms. However in response to the previous SKS-D confiscation I found 2 interesting articles...

[url]www.leginfo.ca.gov/const-toc.html[/url]

CALIFORNIA CONSTITUTION
ARTICLE 1  DECLARATION OF RIGHTS


SECTION 1.  All people are by nature free and independent and have
inalienable rights.  Among these are [b]enjoying and [u]defending[/u] life and
liberty, acquiring, possessing, and [u]protecting property[/u], and pursuing
and obtaining safety, happiness, and privacy[/b].

SEC. 9.  A bill of attainder, [b]ex post facto law[/b], or law impairing
the obligation of contracts may not be passed.

SEC. 19.  Private property may be taken or damaged for [u]public use[/u]
only when [u]just compensation[/u], ascertained by a jury unless waived, has
first been paid to, or into court for, the owner.  The Legislature
may provide for possession by the condemnor following commencement of
eminent domain proceedings upon deposit in court and prompt release
to the owner of money determined by the court to be the probable
amount of just compensation.

I don't see how gun confiscation can be consider "public use"?

This is interesting indeed.

Florida's Constitution is no nonsense. It says in no uncertain terms that the only legal laws are limitations on how a person may carry a firearm and a 3 - 5 day waiting period clause was added in 1998 to Florida's Constitution.

Beyond that every Florida Gun Law is in violation of the state's constitution. This includes NICS, The Ban on Bolo, Flachette, and Dragon's Breath Ammo. as well as the ban on AP Ammo. Yet, Florida continues to make laws counter to the State Constitution. The worst offenders are Broward, Dade, and Palm Beach. Dade being the worst. Dade County (Miami) has banned Private Sales by mandating a NICS check on all Gun Sales, they have numerous other laws such as restrictions on FFLs, etc...

I will post the actual text in a minute.

Florida Constitution Section 8:

I’ll try my best to keep this short [;)]

Basically for the second amendment to have a day in court you are going to need to have a violation of the second amendment.  

CHAPTER. 2.3. ROBERTI-ROOS ASSAULT WEAPONS CONTROL ACT OF 1989
“It is the intent of the Legislature in enacting this chapter to place restrictions on the use of assault weapons and to establish a registration and permit procedure for their lawful sale and possession. ”

This is there legal ace in the hole.  As long as they provide you the means of obtaining a permit it’s legal.  Now, if they reject your permit for no valid reason then you can have a law suet with the state of CA.  This is however, a very expensive and losing proposition.  CA is one of the wealthiest states in the union.   You would have to go though the local Court, appeals court, California Supreme Court and finally the US Supreme Court.  No dough in my mind that this battle will not be settled until it hits the desk of the US Supreme Court.

SB23 dose have an interesting section about permits, if your interested checkout “ARTICLE 3. REGISTRATION AND PERMITS”
[url]http://caag.state.ca.us/firearms/dwcl/12275.htm[/url]

Ok before we start flaming over this, please think about this VERY carefully.  I am bringing this up because this section applies to assault weapons permits.

12230. The Department of Justice may issue permits for the possession, manufacture, and transportation or possession, manufacture, or transportation of machineguns, upon a satisfactory showing that good cause exists for the issuance thereof to the applicant for the permit, but no permit shall be issued to a person who is under 18 years of age.

Now dose the California DOJ have a right to screen permits in this manner?  Lets imagine for a second that this was the needed permit for a public demonstration.  Now this section dose not discriminate “Types” of groups that wish to have a public demonstration.  But what it questions is the cause and means of that demonstration.  I can see in the benefit of public safety that the means of your demonstration should be conducted in a safe and sane way.  However, the content and ‘cause’ of your demonstration should not be questioned.  
What do you guys think?