PaDanby, (if we can refrain from personal attacks and name calling) I have question for you. Assuming your opinion regarding the 2ndA is correct and it does not apply to Californians, to whom does it apply and why? If I understand you correctly, you are saying it only applies at the federal level, but in prctical terms, what does that look like exactly?

What he is referring to is that each state has their own constitution that must be followed. Some states, California and Florida come to mind, don't have a 2nd ammendment in their state consititution. Since state consititutions trump the federal in many regards, California views our right to firearms as a privelage and not a right. Kind of how the government coulnd't bring aid to the Katrina victims until the state asked, because the government can't impose it's power in a state since it's the state's right to rule, so to speak. It's all ass backwards, and needs to be reformed because it's just nonsense based on illogical logic.

Quoted: PaDanby, (if we can refrain from personal attacks and name calling) I have question for you. Assuming your opinion regarding the 2ndA is correct and it does not apply to Californians, to whom does it apply and why? If I understand you correctly, you are saying it only applies at the federal level, but in prctical terms, what does that look like exactly?

Because the Bill of Rights is and was from the beginning a statue of limitations on the Federal Government delineating the Rights of the Citizens and the States  with respect to the Federal Government.  In other words until a court of the proper jurisdiction, usually the SCOTUS,  determines otherwise, any and all the amendments, and the rest of the Constitution apply only to the Federal Government.    This limitation applied to ALL the amendments until a relatively short time ago.  In the case of gun (and other) laws, this falls under the 10th Amendment.  Hence all the states having their own laws on arrest, search and seizure, gun laws, definitions of pornography, eligibility to vote, replacement of Congressmen and Senators, restoration of voting rights for felons, etc.  "Incorporation" of an amendment to lower levels of government, is not automatic and takes a court decision.  One of the basic legal concepts involved is following precedent, and also, that if a legislature had the opportunity to include things in a law, and didn't specifically include (or exclude) things when including or excluding things, they meant to leave that thing out.  A very basic example is a law that says Cities may paint firetrucks any color, preferably red, but not blue.  Joe D. Ragman gets hit by a green firetruck.  He can't sue the city because "the truck wasn't red" and that the legislature intended the law to say any color but blue and green".  Courts rule that since the legislature included "blue" and no other colors it can be legally assumed that had they meant to include green, they would have.

Right now the precedent (a very strong legal argument) is that firearms regulation has been "assumed" to be a State right since the beginning of the Republic.

Incorporation

One of the greatest changes in the interpretation of the Constitution came with the passage of the 14th Amendment after the conclusion of the Civil War. It was designed to assist newly freed slaves in the transition to freedom and to protect them from acts of the Southern states, and also to overturn the decision in the Dred Scott case that ruled that persons of African descent could not be citizens of the United States even if they were born in the United States. The amendment was successful in this endeavor, legally, if not in reality.

But this sentence had and continues to have long-lasting implications on the application of the Bill of Rights to the states:

   No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The "Privileges and Immunities Clause" has been interpreted as applying the Bill of Rights, which lists the privileges and immunities of the citizens, to the states. Known as "incorporation," the application of the Bill to the states did not come all at once, nor was it complete. Even today, there are some parts of the Bill which have not been incorporated. The process began unsuccessfully in the late 1800's and continued unsuccessfully right up until the 1930's. In 1947, however, in Adamson v. California (332 U.S. 46 [1947]), the Supreme Court began to accept the argument that the 14th Amendment requires the states to follow the protections of the Bill of Rights. Historians both agreed and disagreed with the Court's contention that the framers of the 14th Amendment intended incorporation since its passage ... but historians do not sit on the Court. Their opinions were less important than those of the Justices.

The process of selectively incorporating the clauses of the Bill of Rights probably began in Twining v. New Jersey (268 U.S. 652 [1925]) which contemplated the incorporation of some of the aspects of the 8th Amendment - not because they were a part of the Bill of Rights but because they seemed to be fundamental to the concept of due process. This process of incorporating parts of the Bill of Rights because of their connection to due process began to run in parallel with the selective incorporation doctrine, where parts of the Bill of Rights were ruled to be enforceable on the states by virtue of the 14th Amendments, whether or not due process applied.

Thus in the early 1960's, the Establishment Clause, the right to counsel, the rights of free speech, assembly, and petition, and the right against unreasonable searches and seizures were quickly incorporated. Since the early 60's, almost every clause in the Bill of Rights has been incorporated (notable exceptions are the 2nd and 3rd Amendments, the grand jury indictment clause of the 5th Amendment, and the 7th Amendment).

How about to make you happy let's assume my "opinion" is wrong and the Second does apply to the states.  Why hasn't any individual, group, or any interested party been able to sue in the Federal Courts that the CA or any other state, firearms laws are unconstitutional? Because the overwhelming ongoing interepretation, precedent and doctrine of incorporation argue against it.

In answer to your question re the practical Second Amendment.  In theory it applies only to Federal laws limiting/infringing on the rights of citizens to keep and bear arms.  In other words, there can be no federal law infringing those rights.  If you can afford it you can buy it.  In practice, this has been eroded (wrongly in my opinion) by a series of rulings based on flawed interpretations usually regarding "Militia" issues.  Miller saying citizens are limited to military type weapons .  Other Laws saying citizens can't own machine guns.  ??? A little contradiction there.  SCOTUS has not seen fit to resolve that issue, or whether or not it is an individual or group right. The Assault Weapon Ban was unconstitutional on it's face.  Nobody was able to get a case through to get that confirmed.   Similar to Free Speech those are currently seen as acceptable limitations, yelling Fire in a Theater, Libel, slander, Obscenity, My opinion is that almost all the laws at the Federal level are unconstitutional, but as we both  note, my and your opinions don't mean squat.  The 9 men and women in black are the ones whose opinion matters.  How about disenfranchising felons from the vote and firearms?  I think that they are Constitutional because the laws and precedent, including Common Law existing before the United States was that citizens rights to vote or own arms was always limited after commission of felony level crimes.  So in practical terms, the courts have allowed the Congress to make laws infringing on a blanket unlimited "right."

State constitutions do not trump the US Constitution.  They can only add to it and not take anything away from it... but what state legislatures do is create laws that manage to be vague enough to skirt what is addressed in the US constitution, laws that take advantage of things like  "well regulated militia" bit to mean that they can regulate us to death.  Only way to fight those laws is to go all the way to the US Supreme Court and show that they are in violation of the US Constitution.  

I repeat... States cannot add things in their constitution that violate what is in the US Constitution.

State Constitution < US Constitution

Thank you hug.gif

Quoted: Quoted: You should have your handgun loaded and in a holster on your belt when you are at home.  If you don't take it with you to the store you can put it back in your safe for that trip.  When you come home put it back in your holster.  Fairly simple.  I keep my rifle out and in the bedroom unloaded while at home.  I keep a few magazines near it, but not in reach of my two children.  I'll fight my way back to the rifle with my handgun if necessary. Brian I think you need to move to a better neighborhood and quick.   Nobody in my family sees a need to carry 24/7 and that includes 3 generations of LEO's in the LA area. In my case the only thing not locked up and loaded is an 870, the handguns are either in the garage safe or bedroom gunvault.  The Trapdoor Springfield isn't locked up either but it doesn't fit in the safe.  Now if we got into some kind of situation where I was concerned about safety I would upgrade my and Ma Danby's condition of readiness appropriately.  But day to day, it isn't necessary.

Just because you don't feel the need does not mean you shouldn't.  My gun is loaded and with about 6 feet (or on my side at all times.  The farthest it is from me is on my dresser at night or next to me while I drive. Usually on my side while I drive.

Quoted: Quoted: Quoted: You should have your handgun loaded and in a holster on your belt when you are at home.  If you don't take it with you to the store you can put it back in your safe for that trip.  When you come home put it back in your holster.  Fairly simple.  I keep my rifle out and in the bedroom unloaded while at home.  I keep a few magazines near it, but not in reach of my two children.  I'll fight my way back to the rifle with my handgun if necessary. Brian I think you need to move to a better neighborhood and quick.   Nobody in my family sees a need to carry 24/7 and that includes 3 generations of LEO's in the LA area. In my case the only thing not locked up and loaded is an 870, the handguns are either in the garage safe or bedroom gunvault.  The Trapdoor Springfield isn't locked up either but it doesn't fit in the safe.  Now if we got into some kind of situation where I was concerned about safety I would upgrade my and Ma Danby's condition of readiness appropriately.  But day to day, it isn't necessary. Just because you don't feel the need does not mean you shouldn't.  My gun is loaded and with about 6 feet (or on my side at all times.  The farthest it is from me is on my dresser at night or next to me while I drive. Usually on my side while I drive.

Keerist it was a joke about moving.  read further.

Although frankly if it really was bad enough to really require it, rather than exercise in rights, options, feel good, I would seriously think about getting out.  Really requiring it being defined as drugs and dealing nearby, gang activity near-by, graffitti wars, break-ins, home invasions, etc, etc.

Quoted: State constitutions do not trump the US Constitution.  They can only add to it and not take anything away from it... but what state legislatures do is create laws that manage to be vague enough to skirt what is addressed in the US constitution, laws that take advantage of things like  "well regulated militia" bit to mean that they can regulate us to death.  Only way to fight those laws is to go all the way to the US Supreme Court and show that they are in violation of the US Constitution.   I repeat... States cannot add things in their constitution that violate what is in the US Constitution. But what they are "adding" in states like CA, isn't violating the Constitution they are exercising rights designated to them by the Constitution.  AGAIN, regulation of firearms by the States IS ALLOWED by the Constitution, the Second Amendment applies ONLY to the Federal Government.  Are you so obtuse to really believe that if it violated the Constitution that somebody, or the NRA wouldn't have had that thrown out years ago?  Or is there some big conspiracy involving every gunowner, every gun rights group, all the courts, etc to not sue over this in the Federal courts?? In any of the states that have restrictive gun laws??? State Constitution < US Constitution  Only in some areas, in some areas they are equal in power, in some they supercede.  It depends on how they US Constitution treats the issue, and whether or not, for example, the Amendment has been incorporated to the states. Thank you

Quoted: Quoted:State Constitution < US Constitution   Only in some areas, in some areas they are equal in power, in some they supercede.  It depends on how they US Constitution treats the issue, and whether or not, for example, the Amendment has been incorporated to the states.

su·per·sede:
1. To take the place of; replace.
2. To cause to be set aside, especially to displace as inferior or antiquated.

Please give me an example of a state whose constitution supersedes the US constitution.

US Constitution > State Constitution

Every state has its own constitution, but all of the provisions in those state constitutions must comply with the US Constitution. For example, a state constitution cannot deny a defendant the right to a trial by jury, this is a 6th amendment garantee in the US Constitution.  This garantee doesn't just apply to you in Federal court and a state cannot try to get around that in any way shape or form, the only thing they do is try to interpret what a jury is, in some state it can be as little as 6 people.  If the constitution had stated that a jury was 12 then all states would have to go with 12, and none of the state constitutions would able to supersede it by redefining what size a jury should be.

Again if you have an example of a state in this Union of ours, whose constitution supersedes/trumps the US constitution I would love to see it.

Quoted: Quoted: Quoted:State Constitution < US Constitution   Only in some areas, in some areas they are equal in power, in some they supercede.  It depends on how they US Constitution treats the issue, and whether or not, for example, the Amendment has been incorporated to the states. su·per·sede: 1. To take the place of; replace. 2. To cause to be set aside, especially to displace as inferior or antiquated. Please give me an example of a state whose constitution supersedes the US constitution. US Constitution > State Constitution Every state has its own constitution, but all of the provisions in those state constitutions must comply with the US Constitution. For example, a state constitution cannot deny a defendant the right to a trial by jury, this is a 6th amendment garantee in the US Constitution.  This garantee doesn't just apply to you in Federal court and a state cannot try to get around that in any way shape or form, the only thing they do is try to interpret what a jury is, in some state it can be as little as 6 people.  If the constitution had stated that a jury was 12 then all states would have to go with 12, and none of the state constitutions would able to supersede it by redefining what size a jury should be. Again if you have an example of a state in this Union of ours, whose constitution supersedes/trumps the US constitution I would love to see it.

PaDanby is correct, currently, and probably permanently, the Federal Constitution governs only the actions of the federal government.  It’s not violative of the constitution if I break into your house, search everything you won, come up with illegal stuff, and give it all to the cops.  I’m not a government agent, so as long as the government didn’t put me up to it, it’s not an unreasonable search.

Same principle here, the federal government is not the one “infringing,” the state government is.  This is an area left to the states.  Nobody bitches when states

Keerist Spoonkiller haven't you been reading anything here?  State Constitutions supercede the US Constitution in almost all areas where the Constitution delegates the powers to the states.  The Federal Constitution enumerates and limits the powers of the Federal Government, in any area not enumerated to the Feds, State Constitutions supercede.  Why do you think that all the states have their own gun laws, laws of arrest , search and seizure, etc?  Corporate Tax laws? In the past, every state had it's own definition of pornography, obscenity, and that has been recently overtaken by the incorporation of the First Amendment to the States.

Read this, learn this - The Constitution, as amended, and the Bill of Rights are the Laws that govern the Federal Government in it's duties,  and they limit the power of the Federal Government with the respect to the States and the People.  Any power not specifically designated to the Federal Government by the Constitution, is a power of the people or the states.

Just to make sure we're on the same page as to what we are debating, we're not debating State Law verses Federal Code, but the asertion made by people on this board that State Constitutions supersede the US Constitution... the definition of supersede being to replace or displace.  My understanding is still that State Constitutions cannot replace or displace the US Constitution, they can reiterate what's already in it or add to it, as long as it doesn't violate what's already in the US Constitution.  They can't replace anything already defined... ie. they cannot amend it with things that supersede what's already in the US Constitution.

All your examples of the states superseding the US Constitution ie "states have their own gun laws, laws of arrest , search and seizure, Corporate Tax laws etc" are not things that supersede the US Constitution.  They are things that States are able to define for themselves as long as they do not violate the US Constitution.  If they did in fact supersede the US Constitution then they would be able to amend state constitutions with things that violate the US Constitution, because things that supersede, by definition, are things that can replace or displace what's already there.

US Constitution > State Constitution
ie... The US Constitution supersedes all State Constitutions

if you still don't believe me, then please go here:
http://usinfo.state.gov/products/pubs/abtamerica/state.htm
there's a nice little paragraph that goes something like:

State governments are not subunits of the federal government; each state is sovereign and does not report in any constitutional way to the federal government. The U.S. Constitution and federal law, however, supersede state constitutions and state laws in areas where they are in disagreement.

thank you

Where they are "in disagreement", in the case of of those powers enumerated to the states, ie gun regs they are in agreement.