2nd Amendment Does Not Apply to States

[ukerduker]

Massachusetts SJC rules 2nd Amendment does not apply to states | SouthCoastToday.com

Massachusetts SJC rules 2nd Amendment does not apply to states

By Brian Fraga

bfraga@s-t.com

March 11, 2010 12:00 AM

The right to bear arms as defined in the Second Amendment does not apply to the states, so Massachusetts can regulate who can have firearms and how those weapons are to be stored, the state's high court ruled Wednesday.

The Massachusetts Supreme Judicial Court unanimously dismissed two challenges to the state's gun laws that require citizens to register with police departments before acquiring a firearm, as well as keeping guns stored in a locked container or equipped with a trigger lock.

The court upheld the conviction of Nathaniel DePina, a New Bedford man who is serving a two-year jail sentence for carrying an illegal firearm. His lawyer, Paul Patten of Fall River, challenged the conviction on the grounds that the state's gun licensing laws were unconstitutional.

Patten said the Supreme Judicial Court missed an opportunity to contribute to the debate surrounding the Second Amendment.

"I think they could have at least given some guidance on the issue," Patten said. "This leaves all the main questions unanswered."

Meanwhile, law enforcement officials and gun control advocates praised the ruling.

"We have seen in Bristol County, and I believe this is true throughout Massachusetts, that 95 percent of the gun violence is committed by those who have no lawful right to possess or carry a firearm," Bristol County District Attorney C. Samuel Sutter said.

"That is a powerfully compelling argument for the need for licensing requirements for the possession of firearms."

New Bedford Police Chief Ronald E. Teachman said he was "relieved" with the court's rulings.

"If the SJC had not ruled this way, where would we be? That anyone can have a gun, regardless of criminal background or mental health?" Teachman said.

The challenges before the Supreme Judicial Court flowed from the U.S. Supreme Court's 2008 decision in District of Columbia v. Heller, which said that the Second Amendment applied to private citizens in addition to state-regulated militias.

On Wednesday, Massachusetts Justice Ralph Gants said the Heller decision did not have any bearing on state law.

"We conclude that, based on current federal law, the Second Amendment does not apply to the states, either through the 14th Amendment's guarantee of substantive due process or otherwise," he said.

"The defendant's challenge likewise fails under our Massachusetts Constitution, which recognizes no individual right to keep and bear arms."

Jim Wallace, president of the Gun Owners Action League, a gun rights organization, decried the judge's ruling.

"What a mess. It's very clear to me that Justice Gants did not actually read the Heller decision," he said.

The issue could be revisited soon. Last week, the U.S. Supreme Court heard arguments in McDonald v. Chicago, a case in which the court is asked to determine whether the Second Amendment applies to state and local laws.

"The Chicago case will be a remarkable decision," Teachman said. "It will have a profound effect either way."

Attorney Dwight Duncan, a professor at the new UMass School of Law at Dartmouth, said the Supreme Judicial Court may be on "very thin ice" in its gun rulings.

"Given that virtually every provision of the Bill of Rights has been incorporated against the states by the 14th Amendment's due process clause, I think it highly unlikely that the U.S. Supreme Court will decide that the Second Amendment does not apply to the states," Duncan said.

[NextExit]

Hopefully the Chicago case will straighten this out.....

[Il Duce]

what a bunch of Mass.holes

[Smith]

Why is it that only 2a is not incorporated while, everything else is? No body in the right mind would try this with 1a.

[DavidD]

Attorney Dwight Duncan, a professor at the new UMass School of Law at Dartmouth, said the Supreme Judicial Court may be on "very thin ice" in its gun rulings.

"Given that virtually every provision of the Bill of Rights has been incorporated against the states by the 14th Amendment's due process clause, I think it highly unlikely that the U.S. Supreme Court will decide that the Second Amendment does not apply to the states," Duncan said.

Even this guy has it right....what is wrong with these people:wall:<!-- / message --><!-- sig -->

[jeremy155rr]

"We have seen in Bristol County, and I believe this is true throughout Massachusetts, that 95 percent of the gun violence is committed by those who have no lawful right to possess or carry a firearm," Bristol County District Attorney C. Samuel Sutter said.

"That is a powerfully compelling argument for the need for licensing requirements for the possession of firearms."

New Bedford Police Chief Ronald E. Teachman said he was "relieved" with the court's rulings.

How many law degrees does one need to figure out that 99.9% of gun violence is committed by criminals who don't 'legally buy' guns in the first place therefore they 'the criminals' would have no problems with bypassing their 'licensing requirements'.

[DaveTN]

I hate to break it to you guys, but this is the case in most states and almost all of the Federal District Courts.

<O:p</O:p

You have a right to own arms, but you do not have a right to bear arms. That is a state right and it will still be a state right after the McDonald ruling. Unless the Federal government is ready to take over law enforcement; the SCOTUS can rule no other way. Unless of course they just want to make a decision that the states will refuse to comply with.

<O:p</O:p

Some of you think you have problems with cops now; think what it would be like with an Obama Police Force running the show.

<O:p</O:p

[DaveTN]

How many law degrees does one need to figure out that 99.9% of gun violence is committed by criminals who don't 'legally buy' guns in the first place therefore they 'the criminals' would have no problems with bypassing their 'licensing requirements'.

That is absolutely true. But that has to be the belief of the people that are charged with and have the responsibility of law enforcement at the local level.

<O:p</O:p

This is not even going to be an issue. We already fought a war over this and the SCOTUS is certainly not going to take us down that road again. This is not 1787 this is 223 years later and the responsibility for law enforcement is nothing like it was back then. I think the 2<SUP>nd</SUP> amendment serves a purpose and the SCOTUS is doing what it can to keep it from being repealed. But there is no way they can tell you to strap on a gun and walk down the street….. it can’t happen. If it does we are right back to 1861.

[Guest Glock23ForMe]

Safe to say I will NEVER visit Massachusetts... And no business in that state will get my $$$ either.

[Worriedman]

This ruling was made with Heller as a precedent. I suspect that after June, and a ruling by SCOTUS on McDonald v. Chicago, there will be a challange.

[TMMT]

Heler applies only to DC.

This is nothing more than a political hail mary from the Mass SJC. If the USSC rules to incorporate the 2A, the world will chock it up to liberal Mass Judges, to be expected and move on.

If the USSC does an about face, defies all logic and rules against the 2A, then these guys look like liberal legal geniuses.

Either way, its Mass... so who cares

[Guest 6.8 AR]

If SCOTUS decides the 2nd applies evenly( incorporation?)

to all states, Dave, you will be wrong. Mass will be challenged

and anywhere else. Obamacops have nothing to do with this.

I can't see this as anything other than reconfirming a

piece of the Bill of Rights that has been bastardized.

Maybe I'm wrong

[Guest Jamie]

...Unless the Federal government is ready to take over law enforcement...

Dave, if SCOTUS rules that the 2nd is incorporated, and laws are struck down as unconstitutional due to that.... then law enforcement can't very well enforce them. The courts won't enforce them.

But then, I've told you this before, haven't I? And you refuse to see it.

Oh well... Time will tell, and we're all stuck waiting to see what happens.

Folks, good luck arguing with Dave. He has some very peculiar ideas about how the constitution and the courts work, as well as what authority the states do or do not have.

J.

[LngRngShtr]

Massachusetts has always believed itself different because it isn't a state,..

it is the "Commonwealth of Massachusetts" which to some folks is different than a state...

I know because I left in 1997 with all my evil toys.... and life has been easier ever since...

• Massachusetts is a Commonwealth,<sup id="cite_ref-4" class="reference"></sup> declaring itself as such in its constitution, which states that "The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good."
  

Kentucky,Virginia and Pennsylvania are also considered commonwealths along with DC

it is probably just semantics, but the politicians also love using that word to defend some of their less than noble actions...

John

[DaveTN]

Dave, if SCOTUS rules that the 2nd is incorporated, and laws are struck down as unconstitutional due to that.... then law enforcement can't very well enforce them. The courts won't enforce them.

But then, I've told you this before, haven't I? And you refuse to see it.

Oh well... Time will tell, and we're all stuck waiting to see what happens.

Folks, good luck arguing with Dave. He has some very peculiar ideas about how the constitution and the courts work, as well as what authority the states do or do not have.

J.

Jamie,

Some of us are having a discussion; not an argument. Please don’t turn this into a personal attack on me or all you will do is get the thread locked.

I understand that you are all excited about McDonald, you recently learned about incorporation, and you think this is going to be some amazing decision that is going to finally allow the right to bear arms to be enforced.

I hope you are right. But I think at 46 years old you are pretty naive for someone that claims to understand how all this works.

<O:p</O:p

You are not thinking past what you hope will happen with the court rulings. Let’s say the SCOTUS rules that the right to bear arms is and individual right and the state can’t restrict or control it. What do you think will happen next? Do you think Illinois, California, New York or even the great state of Tennessee will comply? No they won’t; they will tell the court to go pound sand. You don’t get to the Supreme Court by being a dumb ass; they won’t do it.

<O:p</O:p

A line would be drawn in the sand. It would no longer be a gun issue it would be a States’ Rights issue. I know which side of that line I would be on, and I hope it never comes to that; we have been there before.

<O:p</O:p

Now… if you can continue with a discussion on this; that would be great. But if you want to reduce this to immature little personal attacks, I’ll refrain from responding to your remarks and maybe you can do the same.

D.

Edited March 16, 2010 by DaveTN

[Guest Jamie]

Some of us are having a discussion; not an argument. Please don’t turn this into a personal attack on me or all you will do is get the thread locked.

Wasn't a personal attack, Dave, only an observation, coupled with a comment on the discussion.

Didn't figure it was worth re-typing everything I've already written here on this subject, since it's all still there to be read by anyone who cares to look it up.

As for people being immature... I'll reserve comment. For now.

One question though, Dave: What are you gonna think if and when SCOTUS does rule for incorporation of the 2nd? Are you going to re-evaluate your opinion of what will happen afterward?

J.

Edited March 16, 2010 by Jamie

[Mike.357]

does not really matter what scotus decides, it will change nothing.

does anyone really think handguns will become legal in chicago? Daley and his crew will invent a new law to counter being told to let the masses have pistols.

[molonlabetn]

...Folks, good luck arguing with Dave. He has some very peculiar ideas about how the constitution and the courts work, as well as what authority the states do or do not have.

J.

No need for this. Disagreement doesn't make him wrong. This debate has occurred many times, and will probably occur many more... Argue the idea not the person.

[Guest Jamie]

This debate has occurred many times, and will probably occur many more.

No "probably" to that one. We're 2 years past Heller and people are still arguing over what it does or doesn't say, and what it will or won't do.

Argue the idea not the person.

Been doing that very thing. The problem is, too many people seem to be hung up on how things have been, and therefore aren't able to see how they're changing.

We aren't where we were 20 years ago. We won't be where we are now in another 20. That may be good, it may be bad... but it is a certainty.

J.

[Guest mikedwood]

I hate to break it to you guys, but this is the case in most states and almost all of the Federal District Courts.

<O:p</O:p

You have a right to own arms, but you do not have a right to bear arms. That is a state right and it will still be a state right after the McDonald ruling. Unless the Federal government is ready to take over law enforcement; the SCOTUS can rule no other way. Unless of course they just want to make a decision that the states will refuse to comply with.

<O:p</O:p

Some of you think you have problems with cops now; think what it would be like with an Obama Police Force running the show.

<O:p</O:p

I'm lost. In order to be a state didn't the several states sign on to abide by the Constitution?

If so has the 2nd changed?

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Is what I was thinking it was?

Is it now:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep Arms, shall not be infringed (except on the state level as each of the several states sees fit independent of the union.)."

I'm not constitutional scholar by a long shot but????? and I'm not trying to be a wiseguy just very curious how you come up with that statement???????

[DaveTN]

If so has the 2nd changed?

No, the interpretation and the application of it have.

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Is what I was thinking it was?

Yes, and as you can see the intent is to maintain a well regulated security force. That is now state and local government, and unless the Feds want to take over law enforcement that is a responsibility claimed by the state.

I'm not constitutional scholar by a long shot but????? and I'm not trying to be a wiseguy just very curious how you come up with that statement???????

I’m not trying to be a wise guy either; just a realist. Do I think everyone should be able to carry a gun? Yes, but I do not tie that right to a dog like the 2<SUP>nd</SUP> amendment. The SCOTUS is trying to keep part of the 2<SUP>nd</SUP> alive because it does serve a purpose. The alternative is to repeal it; they don’t want that to happen. A right to bear arms would not be accepted by many states, Tennessee included.

Tennessee specifically claims it as a state right in section 26 of the Tennessee Constitution adopted 1870.

[Smith]

No, the interpretation and the application of it have.

Yes, and as you can see the intent is to maintain a well regulated security force. That is now state and local government, and unless the Feds want to take over law enforcement that is a responsibility claimed by the state.

I’m not trying to be a wise guy either; just a realist. Do I think everyone should be able to carry a gun? Yes, but I do not tie that right to a dog like the 2<SUP>nd</SUP> amendment. The SCOTUS is trying to keep part of the 2<SUP>nd</SUP> alive because it does serve a purpose. The alternative is to repeal it; they don’t want that to happen. A right to bear arms would not be accepted by many states, Tennessee included.

Tennessee specifically claims it as a state right in section 26 of the Tennessee Constitution adopted 1870.

I don't get why conservative/libertarians whatever have an all or nothing mentality. It is the exact opposite that has allowed the liberal left to make so many advances despite being a small minority.

Heller as a small step, Mcdonald will be the next. We have miles to go to get back to where we need to be and this is the start. The reason some of us see these as HUGE advancements is not because something will drastically change overnight, but rather it is the spark that can get the fire going.

You got to see the big picture Dave.

[DaveTN]

One question though, Dave: What are you gonna think if and when SCOTUS does rule for incorporation of the 2nd? Are you going to re-evaluate your opinion of what will happen afterward?

Jamie why do you care what I think? Does it upset you that much that I am wrong?

What will I do?.....

Jamie, I couldn’t care less what the SCOTUS says; but I am absolutely sure what is going to happen and I doubt there will be any surprises. If the Supreme Court of the United States of America rules that all citizens of this country can strap on their favorite sidearm and go walking down the street…. I will get on this forum and publically apologize to you because if that happens you truly are the best legal scholar I have ever seen post here.

However… when they rule that the 2<SUP>nd</SUP> amendment guarantees the right to own arms but not the right to bear arms are you going to do the same? They are going to shoot down the Chicago hand gun ban. Are they going to end the carry ban in the state of Illinois? No, they are not going to address it and they don’t have the horsepower to do it.

What I’m really curious to see (because I don’t know) is what Daley does. I know Daley and I know that he is not going to take this well. He has to already know what is going to happen. This whole case is because of him thumbing his nose at the Heller decision. He can admit defeat and do away with the ban, He can acknowledge the ruling and find a way around it, or…. If he has the support of the state he can do the same thing he did the last time and tell the SCOTUS to go pound sand. I don’t know what he will do but I guarantee there will be news crews around him 24/7 when it’s close for a time for the ruling. He will be entertaining.

No "probably" to that one. We're 2 years past Heller and people are still arguing over what it does or doesn't say, and what it will or won't do.

It acknowledged the individual right to own guns, and acknowledged the states right to regulate the bearing of them. same as its always been in most states. Same thing that’s getting ready to happen in Chicago… Heller version 2.

We aren't where we were 20 years ago.

What’s changed?

And don’t give a smart answer about what you think has changed or what’s going to change in another 50 years. What has changed now? Do the citizens of the state of Tennessee have a right to carry? How about Illinois? Will you be able to carry a handgun in Chicago?

[DaveTN]

You got to see the big picture Dave.

I think I am crystal clear.

I’m all for what you guys are saying. I just know ain’t happening.

The right to keep arms is settled.

The right to bear arms is not. And yes, it is all or nothing. The state regulates or they don’t. that is the only question left to answer.

[Guest 6.8 AR]

The big picture is a lot larger than Mayor Daley, although I'm confident he will fight anything that takes power from him. SCOTUS was smacked by Obama and the democrats at the last state of the union. I'm sure that will play into this more than you think, DaveTN. With all that is going on politically, for the last several years, abuses and conflicts between all three branches of government, I'd say it's time for the ship to right itself. "Keeping and bearing" is already incorporated in the language

known as the 2nd amendment. It's probably about to be reaffirmed. It's also Barbara Streisand about being just for militias. That word "people" keeps cropping up in my mind.

If the House does that dirty deed about their health care reform bill, don't you think

SCOTUS will consider that as another example of abuse and start by getting this one

right? Chief Justice Roberts has as much as said this.

A lot of things are happening right now.