Constitutional Law, Union and State.

[Worriedman]

From a discussion that started in another thread, I thought this forum was more rightly suited for the direction that one was headed.

I feel we all could use a refresher regarding the Constitution, it's place in our law making, and the history leading up to what we have today as recognized by the Supreme Court. I know I could, I learn something every day, and can be taught by anybody.

It has been suggested that the Declaration of Independence, having been added into the US Code, makes it part of the "Organic Law" of the Nation.

My take is, that the U.S. Code includes the Declaration of Independence, the Articles of Confederation, the Northwest Ordinance, and the U.S. Constitution in their original order of passage. The first three are superseded by the incorporation of the last, (the Constitution), and are held as precursors, but not used by the Supreme Court in deciding cases.

[tntnixon]

From my recent reading, here is the way I take it: Any discrepancy found with the Constitution and The Organic Laws will be trumped by the Constitution because it is the supreme law. Any later laws that conflict with the Organic laws will be trumped by the later passed law since the Organic laws are merely legislative acts and can be overturned by later legislative acts. This is why the Organic laws are never used to overturn a law and are rarely quoted by the SCOTUS or any other federal courts.

[Worriedman]

From my recent reading, here is the way I take it: Any discrepancy found with the Constitution and The Organic Laws will be trumped by the Constitution because it is the supreme law. Any later laws that conflict with the Organic laws will be trumped by the later passed law since the Organic laws are merely legislative acts and can be overturned by later legislative acts. This is why the Organic laws are never used to overturn a law and are rarely quoted by the SCOTUS or any other federal courts.

I agree, so in standing, the Declaration of Independence, while actually codified as law, is superseded when a later act or law is added.

The United States Supreme Court and The Declaration of Independence

A quick search at Findlaw indicates that there are at least 100 United States Supreme Court cases that mention the words "Declaration of Independence" somewhere in the dicta of that opinion.

Yet, not one single case can be found where the authority for the holding in that case was the Declaration of independence.

There is not a single case that was "specifically decided on the Declaration of Independence or its provisions." No decision has turned or can turn on the Declaration of Independence itself.

From Slaughter-House Cases, 83 U.S. 36 (1872) Justice Field:

This, it is true, was the violation of a political right; but personal rights were deemed equally sacred, and were claimed by the very first Congress of the Colonies, assembled in 1774, as the undoubted inheritance of the people of this country; and the Declaration of Independence, which [83 U.S. 36, 116] was the first political act of the American people in their independent sovereign capacity, lays the foundation of our National existence upon this broad proposition: "That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness." Here again we have the great threefold division of the rights of freemen, asserted as the rights of man. Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are the fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all; and these rights, I contend, belong to the citizens of every free government.

[Guest 6.8 AR]

I can't think like this on a full stomach, but you guys keep on and I'll be happy to read your posts:D

[Guest mbushell]

Im just curious to know if anyone can tell me why i need to pass a class, pay a fee, and prove who i am to carry a gun. My other question would be why are there so many different laws and restrictions in different states regarding guns? If the constitution is the supreme law, and no laws can be made by any state to limit the freedoms guaranteed by it, how can lawmakers legally pass these laws... Just curious. Whenever i have had a run in with the law i am told that ignorance is no excuse. Shouldnt that go both ways?

[Worriedman]

Im just curious to know if anyone can tell me why i need to pass a class, pay a fee, and prove who i am to carry a gun. My other question would be why are there so many different laws and restrictions in different states regarding guns? If the constitution is the supreme law, and no laws can be made by any state to limit the freedoms guaranteed by it, how can lawmakers legally pass these laws... Just curious. Whenever i have had a run in with the law i am told that ignorance is no excuse. Shouldnt that go both ways?

Because it is up to the States to either chose to regulate the carrying of arms or not. It is not a power that is given to the Federal Government, even thought they attempt to take it. The 2nd Amendment restrains the Federal Gov. from intruding into the powers given the States, and states the right of the People to keep and bear arms.

The 10th Amendment sums it up nicely, any power not given the Federal Government by the States, are reserved to the States, or the People. It was intended that the Federal Government serve the People, not rule them.

[East_TN_Patriot]

First, the US Constitution primarily applies to the federal government. It outlines the powers of the federal government and specifically states certain rights that the federal government cannot violate, but it is not all inclusive. The 14th amendment extended due process rights to the states. Regardless, the states maintain the majority of legal power to legislate policy for the states as long as the laws don't violate the rights protected by the Constitution. The Declaration of Independence provides the ideological framework behind the Constitution, but is not law per se because it doesn't prohibit or specify any behavior or policy; it's a declaration of our values as a nation. These documents together serve as the backbone of our nation's laws, justice system, and political institutions. To understand the documents, you need to understand the history that led up to the creation of these documents, including the Enlightenment and the centuries of western history prior to it. I literally teach entire semesters talking about these topics and it's something I am very passionate about.

[Guest mbushell]

First, the US Constitution primarily applies to the federal government. It outlines the powers of the federal government and specifically states certain rights that the federal government cannot violate, but it is not all inclusive. The 14th amendment extended due process rights to the states. Regardless, the states maintain the majority of legal power to legislate policy for the states as long as the laws don't violate the rights protected by the Constitution. The Declaration of Independence provides the ideological framework behind the Constitution, but is not law per se because it doesn't prohibit or specify any behavior or policy; it's a declaration of our values as a nation. These documents together serve as the backbone of our nation's laws, justice system, and political institutions. To understand the documents, you need to understand the history that led up to the creation of these documents, including the Enlightenment and the centuries of western history prior to it. I literally teach entire semesters talking about these topics and it's something I am very passionate about.

Thanks, good answer. The part that is still confusing is that the second ammendment states "to keep and bear" the meanings of which i have looked up in todays terms " to own and carry". The way it is read by me and alot of other people it would not be left up to the states to limit or legislate upon. It seems pretty clear that many states have overstepped some boundries. I guess that is why the arguement is still ongoing.

[Worriedman]

I literally teach entire semesters talking about these topics and it's something I am very passionate about.

Perhaps then you can help me. It is my understanding that "property rights" are protected by "common law". I have attempted to read and understand the flow of the Constitutions, both that of the Union and the State, and am having difficulty finding any mention of "property rights" other than an ascertation that no one shall be denied them except by due process of law in those documents.

It has been supposed elsewhere on this board that "enjoyment of property rights" trump every other power of Government by their inclusion in "unalienable rights". The Supreme Court said in the Slaughterhouse ruling (Justice Field) that "Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are the fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all; and these rights, I contend, belong to the citizens of every free government."

Which do you understand to be the arbiter of instances where the property rights of one contend with laws instituted by a Legislature, the individual property owner, or the Law?

[East_TN_Patriot]

Which do you understand to be the arbiter of instances where the property rights of one contend with laws instituted by a Legislature, the individual property owner, or the Law?

[/color]

Although my area of expertise is on crime and the criminal justice system, including the historical origins of them, I think I can shed some light on this. I'm also not a lawyer, so my explanation is more academic than specifically tied to any state law. Common law is a bit of a slippery concept when it applies to today's world and it can relate to different things depending on what you are talking about. English common law was the first major codified system of laws that were based on the common traditions and laws in place in England when they were created circa 1066 AD. The intent was to make the law uniform across the entire United Kingdom and establish a way for judges to apply legal opinions to similar cases throughout the kingdom. It serves as the fundamental basis for our legal system and was adopted by the US when the nation was formed. The idea of equal protection under the law and use of case law (aka precedent or "stare decisis") are embedded in our Constitution. Essentially, what this means is that the common law in America is nothing more than what the codified law says regarding a particular issue - in your question, property rights - and how the courts have ruled on cases that have come up surrounding the codified law. In other words, property rights are governed by the written statutes of the states, federal law, and the case law that may apply (case law being what you are actually talking about in today's world when you refer to common law). The Declaration of Independence and the Constitution uphold and protect the idea of private property and the government cannot deprive you of your property without due process of law. Due process is further governed by written law and case law, which is the source for a lot of debate because the case law has become immense and many court cases become a debate between two lawyers arguing the merits of prior decision that typically only indirectly apply to the case at hand. The winner is the one who makes the better argument and/or has the best ability to research the law.

I hope this helps, if not just let me know and I'll give it another shot.

[JayC]

Because it is up to the States to either chose to regulate the carrying of arms or not. It is not a power that is given to the Federal Government, even thought they attempt to take it. The 2nd Amendment restrains the Federal Gov. from intruding into the powers given the States, and states the right of the People to keep and bear arms.

The 10th Amendment sums it up nicely, any power not given the Federal Government by the States, are reserved to the States, or the People. It was intended that the Federal Government serve the People, not rule them.

I would contend the 2nd Amendment and the 10th Amendment make it clear that regulation of firearms does not belong to either, that the Constitution is the Supreme law of the land, and it states:

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.

You'll note that it doesn't state the right of the States... then you have the 10th Amendment which states:

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.

Clearly the 2nd Amendment is meant to protect a God given right to "the people" which can not be taken away by any level of Government, the States included.

Lets be clear, the States should have some authority in our daily lives greater than the very limited Federal government, but they do not have absolute authority, they are limited in the powers the people of that state granted to them as well, just as the federal government is limited in the power the states granted it.

The exercise here is not to go from 1 Federal monster, who we put back in it's Constitutional cage, and exchange it for 50 little monsters... The goal is to return to true freedom, where we have just enough government intervention to prevent society from slipping into anarchy on a regular basis, and nothing more.

[Guest 6.8 AR]

I would contend the 2nd Amendment and the 10th Amendment make it clear that regulation of firearms does not belong to either, that the Constitution is the Supreme law of the land, and it states:

You'll note that it doesn't state the right of the States... then you have the 10th Amendment which states:

Clearly the 2nd Amendment is meant to protect a God given right to "the people" which can not be taken away by any level of Government, the States included.

Lets be clear, the States should have some authority in our daily lives greater than the very limited Federal government, but they do not have absolute authority, they are limited in the powers the people of that state granted to them as well, just as the federal government is limited in the power the states granted it.

The exercise here is not to go from 1 Federal monster, who we put back in it's Constitutional cage, and exchange it for 50 little monsters... The goal is to return to true freedom, where we have just enough government intervention to prevent society from slipping into anarchy on a regular basis, and nothing more.

I like the way you stated that! It makes good sense and I expect it will be challenged by someone on this board in its content, but should stand the test of time.

[Guest mbushell]

I would contend the 2nd Amendment and the 10th Amendment make it clear that regulation of firearms does not belong to either, that the Constitution is the Supreme law of the land, and it states:

You'll note that it doesn't state the right of the States... then you have the 10th Amendment which states:

Clearly the 2nd Amendment is meant to protect a God given right to "the people" which can not be taken away by any level of Government, the States included.

Lets be clear, the States should have some authority in our daily lives greater than the very limited Federal government, but they do not have absolute authority, they are limited in the powers the people of that state granted to them as well, just as the federal government is limited in the power the states granted it.

The exercise here is not to go from 1 Federal monster, who we put back in it's Constitutional cage, and exchange it for 50 little monsters... The goal is to return to true freedom, where we have just enough government intervention to prevent society from slipping into anarchy on a regular basis, and nothing more.

Yeah.. thats what i meant.

[sigmtnman]

Perhaps the question should be, was the constitution rendered moot with the passage of two amendments without a quorum (or perhaps under duress)? Did the 13th/14th amendment free slaves or did it make everyone a slave of the Federal government and responsible for it's debt without question.

Thirteenth Amendment

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.[2]

Fourteenth Amendment

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

[Guest mbushell]

Fourteenth Amendment

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

So this is the qusetion i was asking ... If the second ammendment is part of the constitution, and considered supreme law, it guarantees me the right to have and carry with me a gun. The way i read it it is my duty as a citizen to do so. Then how can tennessee make me take a class, charge me money, and make me apply to do so first if the above clause exists as the fourteenth.

In other words it seems to me that the laws of the states, some more than others, limit my right to bear arms. "Abridging" that freedom, and depriving me the right do as i wish with my property... Im assuming that by owning a gun having fairly paid for it that it is my property.

It seems that i need to research the point at which folks were required to register to carry a gun. It wasnt so long ago that there was no such requirement or law...The way it should be

[sigmtnman]

Yes, but section 5 allows congress to take it away by statutory law.

[Worriedman]

I heard it put a different way tonight. The 2nd Amendment is the only one that enjoys the "shall not be infringed" language for a Citizen. All others, "Life, Liberty and Property can be taken, Life if one commits and infamous crime, Liberty if a crime of lessor magnitude is committed, and the perpetrator loses their citizenship (along with all other rights, including those expressed in the 2nd Amendment) and Property, through eminent domain. Granted they must be taken by "due process", but, that process is allowed and stated in the Constitution.

[East_TN_Patriot]

Except what folks don't realize is that until the passage of the 14th Amendment and various Supreme Court cases (Gideon v. Wainwright immediately comes to mind), the protections in the Constitution did not apply to state laws. The Constitution in it's original format only applied to the powers of the federal government.

[DaveTN]

The Supreme Court of the United States is the interpreter of the Constitution. Prior to Heller and McDonald all (Except maybe one) of the Federal Districts had ruled that the 2nd amendment was not an individual right. In both Heller and McDonald the court ruled that while the right to own a gun is an individual right the right to control carry rests with the state.

So now the 2nd amendment guratentees you the right to own guns; your state will control when and where you can carry them. It also guarantees that the government could not disarm a Police Department or a state militia. Our cops could not be disarmed like the cops in England are. As long as the 2nd amendment is in play.

This was really the only way this could play out.

[RobertNashville]

Im just curious to know if anyone can tell me why i need to pass a class, pay a fee, and prove who i am to carry a gun. My other question would be why are there so many different laws and restrictions in different states regarding guns? If the constitution is the supreme law, and no laws can be made by any state to limit the freedoms guaranteed by it, how can lawmakers legally pass these laws... Just curious. Whenever i have had a run in with the law i am told that ignorance is no excuse. Shouldnt that go both ways?

This was just recently explained to me...I'll try to pass along that explanation.

In the Constitution of the State of Tennessee, the people of Tennessee gave the State the power to regulate the "wearing of arms" but with the limitation of "with a view to prevent crime". In other words, the purpose of such regulations regarding bearing (wearing) arms should have to pass though the filter of "does this regulation help to reduce crime" (special note, these are not exact quotes of the TN Constitution but I think they are close)? If it does not then the regulation is not proper. However, as time progressed, a "view to prevent crime" morphed into "this sounds like a good idea" and so, among other things, we have the HCP process.

Most reasonable people, if they think it through logically almost have to conclude that the HCP process doesn't do much if anything at all to "prevent crime"...good people can have different opinion about whether it's a "good idea" but "prevent crime"??? Not often and not likely.

The problem is that "what it is is what it is"...that's the system we've got and for now, it's the system we have to work under. However, the wheels keep turning so "stay tuned". I'll suspect we'll see the day when anyone who can legally possess a firearm will be able to carry a firearm on his person and the HCP process will be a totally voluntary system (it does have its uses, afterall).

Edited February 17, 2011 by RobertNashville

[Worriedman]

The Supreme Court of the United States is the interpreter of the Constitution. Prior to Heller and McDonald all (Except maybe one) of the Federal Districts had ruled that the 2nd amendment was not an individual right. In both Heller and McDonald the court ruled that while the right to own a gun is an individual right the right to control carry rests with the state.

So now the 2nd amendment guratentees you the right to own guns; your state will control when and where you can carry them. It also guarantees that the government could not disarm a Police Department or a state militia. Our cops could not be disarmed like the cops in England are. As long as the 2nd amendment is in play.

This was really the only way this could play out.

Miller accented to the "right" of individuals to own firearms suitable for use in the militia, did it not?

[Oh Shoot]

.... I'll suspect we'll see the day when anyone who can legally possess a firearm will be able to carry a firearm on his person and the HCP process will be a totally voluntary system (it does have its uses, afterall).

Why do you think that will be the trend over the long haul, when restricting carry has been the norm over the last hundred years?

- OS

[JayC]

Except what folks don't realize is that until the passage of the 14th Amendment and various Supreme Court cases (Gideon v. Wainwright immediately comes to mind), the protections in the Constitution did not apply to state laws. The Constitution in it's original format only applied to the powers of the federal government.

Keep in mind that no where in the Constitution does it say that SCOTUS gets to decided what is or isn't constitutional, that is a power they made up for themselves.

The 10th Amendment clearly states that other powers are granted to the states or the people, and the 2nd Amendment is a right of the People, not of the states.

[JayC]

Robert,

When did the addition of can 'regulate the wearing of arms' come about... It wasn't in the original TN Constitution, look into the process of how the current Consitution was drafted and passed and notice that it might not have conformed to the legal process of amending the TN constitution in place at that time.

Also, note who was or wasn't allowed to take part in the drafting or voting on the current constitution.

The spoon feed history we were given in school, glosses over all these issues, that shortcuts were even taken, let alone holding them up to the light of legality.

This was just recently explained to me...I'll try to pass along that explanation.

In the Constitution of the State of Tennessee, the people of Tennessee gave the State the power to regulate the "wearing of arms" but with the limitation of "with a view to prevent crime". In other words, the purpose of such regulations regarding bearing (wearing) arms should have to pass though the filter of "does this regulation help to reduce crime" (special note, these are not exact quotes of the TN Constitution but I think they are close)? If it does not then the regulation is not proper. However, as time progressed, a "view to prevent crime" morphed into "this sounds like a good idea" and so, among other things, we have the HCP process.

Most reasonable people, if they think it through logically almost have to conclude that the HCP process doesn't do much if anything at all to "prevent crime"...good people can have different opinion about whether it's a "good idea" but "prevent crime"??? Not often and not likely.

The problem is that "what it is is what it is"...that's the system we've got and for now, it's the system we have to work under. However, the wheels keep turning so "stay tuned". I'll suspect we'll see the day when anyone who can legally possess a firearm will be able to carry a firearm on his person and the HCP process will be a totally voluntary system (it does have its uses, afterall).

[RobertNashville]

Why do you think that will be the trend over the long haul, when restricting carry has been the norm over the last hundred years?

- OS

I think you'll find that most of the laws that restricted the wearing of arms stated back in the mid-late 1800s or so. So, yes, we went a long time with very limited or sometimes no ability to legally carry our firearms. However, the trend over the past 30 years or so has been to expand the right of the people to bear arms and while there are no guarantees, I think it reasonable that the trend will continue.

Past performance is, of course, not a guarantee of future results but I believe we'll keep seeing the return of our firearms rights as we are seeing in states all over the country including what is commonly called "constitutional carry".

Of course, for my belief to be correct, "gun folks" do more than just sit on their rear ends and talk about how it's "supposed to be" on an internet forum...at the end of the day, talk without action is meaningless.

Edited February 17, 2011 by RobertNashville