Here's a nifty case that should test what people really think when they have to weigh constitutional principles against personal beliefs. San Francisco tried to ban handguns and make possession of long guns tougher. This was done by in a voter referendum, with 58 percent of voters agreeing with the ban. But a judge said no, the citizens of San Francisco did not have the right to make this decision:
San Francisco Superior Court Judge James Warren agreed with the National Rifle Association, which argued that Prop. H exceeded the powers of local government and intruded into an area regulated entirely by the state. The NRA sued on behalf of gun owners, advocates and dealers the day after the measure passed. Enforcement of the measure was suspended while the suit was pending.
Warren said California law, which authorizes police agencies to issue handgun permits, implicitly prohibits a city or county from banning handgun possession by law-abiding adults.
The NRA has always been a strong supporter of the 2nd Amendment, which, like the rest of the Bill of Rights, was a proscription aimed at the federal government -- leave most things to the states and the people; let us govern our own lights. An honest interpretation of the Constitution would have no problem with states or local governments banning every weapon under the sun or, conversely, ordering people to carry guns. But here we have the NRA stepping in to tell the citizens of a city they have no right to control their own destiny. And we have the state of California making the claim that it has the right to have the ultimate say. Either I have misunderstood the whole concept of federalism, or a whole lot of people simply don't give a damn about it.
As it happens, I think most gun-control efforts are misguided. There is a war going on between predators and victims, and the effect of gun control is to disarm the wrong side. That is just stupid. But people have the right to make stupid decisions, and communities, under the Constitution, have the right to be misguided.
Comments
So, if a state's constitution (which I believe is ratified by the people of the state) says one thing, a small group of people can just ignore that and do as they please, ... ?
Fact - there are NO provisions related to the right to keep and bear arms in the California Constitution. With that fact in mind, let them do whatever they want! Disarm each and every law-abiding citizen in California, ban guns, ban ammuntion, and turn their entire population into helpless victims to the advantage of roaming gangs of thieves, robbers, rapist and murderers. Then, let the rest of this Nation sit back...and watch the mayhem.
You are correct in stating that the Constitution was written to leave most things to the state governments. But, while the 2nd Amendment does so, and does so quite well, it also provides for the right of every citizen no matter where they are in the US.
The 2nd Amendment was provided to give people not only the right to bear and use arms to protect life and property, it was also provided to give citizens the right to defend themselves against oppressive governments.
Like the local government of San Francisco.
OK, point taken, it's not in the state constitution. To quote the SF Chronicle in an article written 10-30-2005 "State law is pretty clear that such regulation is the Legislature's domain." I was close - my point still stands - the city had no legal authority to do what they tried. And, if you look at the court documents (available on the web), there were many more people and organizations fighting for this repeal than just the NRA. And, I
The US Constitution protects the rights of all citizens from government infringement in several areas, including speech, religion, and the right to keep and bear arms. If CA didn't have anything in its state constitution about freedom of religion, would it be subject to elimination by state law? I don't think so.
I guess reason was on vacation when firearms were banned in DC and Chicago, huh ?
Given the state of affairs in California, I vote we GIVE the state to the 12 million
"undocumented or unregistered or paperwork challenged or guest workers (whatever the hell the dems are calling them this week).
Give the whole state to them. Leave all the people there that want to stay, especially the 9th circuit court....
Then we plant explosive charges along the fault lines and let it float the hell out to sea. Then all the nuts in California can form their own little freakshow island country and we will have taken care of TWO big problems .
Good idea, Tim, ... I like lt !!!
I agree with you, Mr. Morris, in theory-- but in reality, federalism died at a court house in Appomattox, Virginia some 141 years a go. The post-Lincoln regime cloaked its radical transformation of American constitutionalism in the language of the antebellum regime, but the character of the regime was fundamentally different.
Federalism now means whatever the U.S. congress and the courts want it to mean.
Did anyone notice that after West Hollywood passed their Saturday Night Special ban, the Court ruled it was Constitutional? However after AB-15 became State law, the West Hollywood ban was repealed due to State Premption. It appears once the State takes control and regulation of a certain intrest, cites lose say over that area. Morton Grove Ill. managed to keep their handgun ban because the State has a keep and bear arms provison in their Constitution and their Courts ruled banning handguns was allowable since it did not ban all arms.
From the Federalist Patriot (www.patriotpost.us), Friday, June 16, 2006:
Around the nation...
From the states, San Francisco's voter-approved gun-grab has been overturned by a California judge. In November, 58 percent voted to ban handgun possession and firearm sales in the city, though it only applied to city residents. The County Board of Supervisors and San Fran voters were apparently unaware that it takes two-thirds of Congress and three-quarters of the states to amend the Constitution. The city attorney's spokesman said that the court "denied the right of voters to enact a reasonable, narrowly tailored restriction on handgun possession," though the court ruled, similarly to the recent Colorado ruling, that state law permission pre-empts local restriction. Here we might point out that the Second Amendment clearly states that "the right of the people to keep and bear Arms shall not be infringed"
MISUNDERSTANDING FEDERALISM
The 2nd Amendment of the U.S. Constitution, by itself, is not relevant to the fight inside California and San Francisco over gun control. But the U.S. Constitution does speak in other ways. First is the provision guaranteeing that all States have a republican form of government, and even more important is the 14th Amendment of the U.S. Constitution prohibiting States from restricting the rights of U.S. citizens. So States are not free to do as they please.
Now the 14th Amendment has had a long and tortuous history, but today the general result of that turmoil is the expansion of the Federal bill of rights so that even State governments cannot violate those rights.
Many people will resort to cherry picking the history of the 14th Amendment to claim the 14th does not protect the right to own a gun. That is a repulsive position considering the 14th at one time did not protect any rights thereby giving rise to Jim Crow laws. Over time the 14th has been restored to it's original purpose, overturning the legacy of State governments violating rights. The U.S. 2nd Amendment is merely one of the last gaps of the 14th Amendment "incorporation" of the U.S bill of rights to protect citizens from State governments.
Even the California Constitution may have untapped potential to protect the right to own a gun. In the body of the California Constitution there are provisions protecting the rights of Californians. It's true that of those enumerated rights the right to own a gun is not listed, there is no equivalent of the U.S. 2nd Amendment there. But there is an enumerated right to self-defense! And even more important there is a provision for non-enumerated rights, the equivalent of the U.S. Constitution 9th Amendment.
The 9th Amendment is, amazingly, ignored by most partisans in American politics. The basic power of the 9th is to clarify that just because a right is not listed (enumerated) doesn't mean it isn't valid, the people still retain all those non-enumerated rights anyway. Political partisans are all to quick to claim that the only rights that are protected are only those that the Constitution specifically lists. The 9th Amendment contradicts that claim and confirms that citizens have rights beyond those that are specifically mentioned in the Constitution.
I would argue, that at a bare minimum, non-enumerated rights must include ANY individual right that is enumerated in any U.S. State or U.S. Federal constitution. This is so far as I know a novel approach to protecting rights using the 9th Amendment. This approach could provide even a resident of San Francisco protection of their gun rights.