Repugnant State Constitutions & BOR

[george_co]

Reading the threads "Keep VS Bear" and Heller & Parker V DC. Has forced me to bring a question to this auspicious group regarding "Incorporation" of the BOR with the States and the need for the State Constitutions to not be "Repugnant" to the US Constitution.

In the Federal legislation enabling Colorado to proceed toward statehood, it required among otherthings that the adopted constitution "be not repugnant to the Constitution of the United States". This is reiterated in Article II Paragraph 2 of the adopted state constitution.

I believe that the Federal enabling legislation for all of the states added after the original 13 included a similar statement.

Now here is my rather simple question, which probably has a more convoluted answer; Would not this "not be repugnant to" phrase require that indiviual rights protected under the US Constitution (and its amendments, the 14th having just been adopted) be incorporated into the state's protection as well?

Therefore, if the 2A is now defined as an individual right as a result of Heller Vs DC, wouldn't it follow that it is a right that must be protected (read "Incorporated") as an individual right under the various state government's constitutions.

Now I know that this will have to be litigated in a couple of states first, for example New York and California. But once in front of SCOTUS I can't see how they would not "Incorporate" the 2A with the states. In fact I have trouble believing that some of the State Supreme Courts or the Federal District Courts would not rule in favor of incorporation.

Just my thoughts, what are yours?

I am not now, nor have I ever been or ever will be an attorney.

George

 

[legaleagle_45]

George Co wrote:

Now here is my rather simple question, which probably has a more convoluted answer; Would not this "not be repugnant to" phrase require that indiviual rights protected under the US Constitution (and its amendments, the 14th having just been adopted) be incorporated into the state's protection as well?

Ah if life were so simple... Originally the rights protected in the BoR's were protected from federal infringment only. Thus, a state constitution or law which provided for violations of the BoR's would not necessarily be repugnant to the US Constitution. What would be repugnant would be if those provisions invaded exclusive federal turf... such as making treaties with foriegn governments. An additional backup which would work to preserve certain fundamental rights is the federal guarantee to each state of a "republican form of governement". Thus if you could succesfully argue that the denial of one element of the BoR's would result in the failure of that institution to be a "republican form of governement", you might get there, otherwise you will not. Unfortunately, even the framers could not agree on what was meant by a "republican form of government, so I will not even attempt to enter the fray.

Essentially the analysis is this:

The BoRs firmly state that the feds can not do such and such, it is not repugnant to those words if a state does such and such....

 

[oobray]

legaleagle,

That's not the way I was taught in law. If that were the case then civil rights violations could only be brought upon against the fed's. Which as we all know is not the case. Many state officers and governments were taken to court between the 60's and recently over civil rights violations. It is my understanding that the states can give more rights to the people than the Constitution affords, however under no circumstances may the states reduce the rights given to citizens by the constitution. I think that if the SCOTUS decides the "individual" right in the 2a, then it will only be a matter of time before people are taking the state governments to court of that issue. And of course the states will then have to comply.

 

[legaleagle_45]

That's not the way I was taught in law. If that were the case then civil rights violations could only be brought upon against the fed's.

That is by virtue of selective incorporation using the 14th amend to incorporate some, but not all of the BoR's and make them effective as a restriction upon states.

It is my understanding that the states can give more rights to the people than the Constitution affords, however under no circumstances may the states reduce the rights given to citizens by the constitution.

SCOTUS specifically has ruled that a state need not afford a jury trial to all suits at common law where the amount in controversy exceeds $20. Thus, Oregon (for example) provides for exclusive jurisdiction to the small claims department to all disputes involving $500 or less. There is no right to a jury trial and there is no right to an appeal from small claims.

I think that if the SCOTUS decides the "individual" right in the 2a, then it will only be a matter of time before people are taking the state governments to court of that issue.

The incorporation analysis is a little different. I can tell you that I am MUCH more confident of a SCOTUS ruling that the 2nd protects an individual right than I am that the states are bound to observe the 2nd. Scalia, for example seems to imply in his writings and speeches that he does not believe the 2nd should be a restriction upon state action.