azmjs said:
Owen Sparks said:
The Second Amendment to the Constitution was violated in 1934 by The National Firearms Act. ANY federal gun legislation is unconstitutional just as any federal restriction on speech or religion would be. The Bill of Rights is a list of things that the federal government is supposed to have no power over. The right to keep and bear arms is one such enumerated right, in fact arms are the ONLY item that the Constitution guarantees you the right to possess.
Not true.
Owen Sparks said:
azmjs said:
care to elaborate on that?
I'll elaborate.
[1] It has long been settled law that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table with respect to the Second Amendment based on some language in
McDonald. And since the Court in
McDonald has explicitly characterized the right described by the Second Amendment as fundamental, we have some reason to hope that the highest level of scrutiny, "strict scrutiny" will apply. Strict scrutiny has thus far generally been the standard applied to any regulation of a fundamental right enumerated in the Bill of Rights.
The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.
[2] So with respect to the Second Amendment, some level of regulation will, no doubt, be found constitutional by the courts. Whichever level of scrutiny may apply, government will at least be able to make its pitch that the regulation challenged satisfies the test. Some will, and some will not.
[3] It's been thus with respect to the First Amendment as well. The First Amendment reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
The word "abridge" meant, at the time the Constitution was written, to deprive or diminish. Notwithstanding this plain language, we have many laws abridging the freedom of speech and assembly which have been sustained by the courts. We have laws requiring permits for parades and public assemblies; we have laws requiring prior regulatory approval of material soliciting offers to buy securities; we have laws regulating playing load music in residential areas to the disturbance of others; and courts have consistently ruled that the time, place and manner of speech may be regulated.
[4] Why do the courts get to decide such thing? Well, the Constitution authorizes them to do so (Constitution of the United States, Article III):
Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.....
"Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,....
And, as Chief Justice John Marshall wrote in the decision in
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803):
....It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.....
Note also that many of the Founding Fathers (the delegates to the Constitutional Convention who signed the Constitution) were lawyers. They were familiar with English Common Law (the basis of out legal system) and that for a long time it had been customary for the courts, under the Common Law, to consider the validity of such matters as the Acts of Parliament and the actions of the Crown under the rather amorphous collection of statutes, court judgments, treaties, etc., that became understood in the Common Law to be the English Constitution. And thus there was Common Law precedent, as no doubt understood by the Founding Fathers, for the invalidation of a law as unconstitutional being within the scope of the exercise of judicial power. (And English cases continued to be cites by courts of the United States for many years after Independence.)
And while John Marshall may not have been a Founding Father, he wasn't at the Constitutional Convention, he should at least be entitled to be considered a founding uncle. He was a delegate to the Virginia Convention that would ratify or reject the Constitution and, together with James Madison and Edmund Randolf, led the fight for ratification.
[5] So the bottom line is that whether or not a law is constitutional will be up to the court. A court's opinion on a matter of law, such as whether a law is or is not constitutional, affects the lives and property of real people in the real world. Your opinion on such things does not.
