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Thread: States' rights question

  1. #1

    States' rights question

    I am a defender of states' rights, and much of my reasoning for this is based on the Founding Fathers' view that the federal government should be rigorously limited to the powers defined and described in the Constitution, and that other matters, which the Constitution did not address, were to be left up to the states.

    However, there are two areas which have "stumped" me.

    1. My state of NJ has a constitution which does not mention the right of its citizens to bear arms (unlike 40+ of the other 50 states which actually do). This makes it very difficult (among other reasons, such as corrupt police precincts who add requirements on top of state law-mandated requirements) to even purchase a handgun. A CCW permit is essentially impossible to obtain.

    However, if each state has a right to define its own laws, then how can NJ residents fight back? How do we use the Constitution vs. the constitution of NJ?

    2. A liberal/leftist friend of mine says that "states' rights" have been used by many politicians to preserve structures, to enact laws, and to perpetuate practices which were discriminatory: school segregation, racial segregation, no voting for nonwhites, etc. I myself learned that certain states from the former Confederacy later passed specific laws that only "free white men" would have the right to bear arms.

    If the Constitution's principles apply to all people - freedom of speech, right to bear & to keep arms - then how does one answer this quandary of individual states passing laws that contradict Constitutional principles of equality?
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  3. #2
    Originally, the Bill of Rights was held to restrict only the federal government. But after the ratification of the 14th Amendment, the Supreme Court began holding that certain provisions of the Bill of Rights applied to the States. This process was called "incorporation" of the Bill of Rights, and to date most of the BOR provisions have been applied to the States via the due process clause of the 14th Amendment. Here's a summary: https://en.wikipedia.org/wiki/Incorp...Bill_of_Rights

    The Second Amendment was incorporated in McDonald v. Chicago, 561 U.S. 742 (2010).
    We have long had death and taxes as the two standards of inevitability. But there are those who believe that death is the preferable of the two. "At least," as one man said, "there's one advantage about death; it doesn't get worse every time Congress meets."
    Erwin N. Griswold

    Taxes: Of life's two certainties, the only one for which you can get an automatic extension.
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  4. #3
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    Quote Originally Posted by The Freethinker View Post
    I am a defender of states' rights, and much of my reasoning for this is based on the Founding Fathers' view that the federal government should be rigorously limited to the powers defined and described in the Constitution, and that other matters, which the Constitution did not address, were to be left up to the states.

    However, there are two areas which have "stumped" me.

    1. My state of NJ has a constitution which does not mention the right of its citizens to bear arms (unlike 40+ of the other 50 states which actually do). This makes it very difficult (among other reasons, such as corrupt police precincts who add requirements on top of state law-mandated requirements) to even purchase a handgun. A CCW permit is essentially impossible to obtain.

    However, if each state has a right to define its own laws, then how can NJ residents fight back? How do we use the Constitution vs. the constitution of NJ?
    There are a few options, one is the courts. File a legal challenge. This would be pretty expensive so you'd want some institutional backing. I found this page, could be of interest to look at: https://en.wikipedia.org/wiki/Firear..._United_States

    Another option is legislative, basically get legislation drafted up, gain support, and push it through to become law. You'd want a good common sense bill so legislators will look bad to not support it. If they don't you work to expose them. Worst case, you get people to run against them. There are some established techniques to make this happen by applying pain to legislators.

    Obviously none of this is easy or cheap.


    2. A liberal/leftist friend of mine says that "states' rights" have been used by many politicians to preserve structures, to enact laws, and to perpetuate practices which were discriminatory: school segregation, racial segregation, no voting for nonwhites, etc. I myself learned that certain states from the former Confederacy later passed specific laws that only "free white men" would have the right to bear arms.

    If the Constitution's principles apply to all people - freedom of speech, right to bear & to keep arms - then how does one answer this quandary of individual states passing laws that contradict Constitutional principles of equality?
    I'm not a lawyer but -- state legislators can pass whatever law they want; more or less; the laws however can be challenged in a court which can strike them down.
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  5. #4
    Hm. Kind of funny irony but I was just reading a chapter about consent. Well...Just Power. Or Limited defined, I suppose.

    But, yeah. Consent is always required. Or should be. Whether or not people organize and contest something is quite another endeavor. Framers were wise enough to provide for us the means to do this within our structure. Interesting quirk there the way our system is framed whereas the fed would is of the jurisdiction to do what Bryan mentioned. Is why I'm a fan of less government rather than no government at all.

    Anyway, here is the chapter I was reading before finding this thread. It's a good book, really. I added it to the book subforum here some time ago.

    A Principle of The Traditional American Philosophy -- 5. Limited Government

    Quotes Supporting Principle Five

    Here is the book itself if anyone cares for a good read - The American Ideal of 1776: The Twelve Basic American Principles
    Last edited by Natural Citizen; 04-29-2016 at 12:14 AM.

  6. #5
    It really depends on the situation as to whether states rights are beneficial or not. As a general rule it's better to have multiple competing states so that there is some recourse aka leaving the state for greener pastures
    Carthago Delenda Est

  7. #6
    Buy guns. Buy ammo.
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    'Resistance and Disobedience in Economic Activity is the Most Moral Human Action Possible' - SEK3

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    ...for protecting them, by mock trial, from punishment...


  8. #7
    Well, states don't have rights. They have delegated powers. This is important to remember. You have rights. The state does not.

    On that issue, originally state constitutions trumped the Federal constitution when they contradicted. The US Constitution only applied to the Federal government. With guns you will probably just have to create a movement to change NJ law.

    On the second issue, you're friends are correct, state's "rights" arguments have been used to prop up things like segregation and slavery. But Federal supremacy has been abused in the exact same ways. Everything you know to be wrong with the government, every issue of abuse, mismanagement, and violation? Federal supremacy. This idea has a long history of evils too. The Alien and Sedition Acts, Indian Removal and land confiscation, the Fugitive Slave Acts, drafts, the Civil War, segregation (remember segregation was ruled legal by the SCOTUS originally and thus legalized across the country), state sanction eugenics and sterilization programs, Federal seizure of gold, fiat currency, the PATRIOT Act, and on and on and on it goes. Neither argument is without blood or oppression, so if the issue is what limits the capability the most of a group of individuals to oppress another, then the "state's rights" construction is much preferable over the idea of complete Federal supremacy.

  9. #8
    Quote Originally Posted by PierzStyx View Post
    Well, states don't have rights. They have delegated powers. This is important to remember. You have rights. The state does not.

    On that issue, originally state constitutions trumped the Federal constitution when they contradicted. The US Constitution only applied to the Federal government. With guns you will probably just have to create a movement to change NJ law.

    On the second issue, you're friends are correct, state's "rights" arguments have been used to prop up things like segregation and slavery. But Federal supremacy has been abused in the exact same ways. Everything you know to be wrong with the government, every issue of abuse, mismanagement, and violation? Federal supremacy. This idea has a long history of evils too. The Alien and Sedition Acts, Indian Removal and land confiscation, the Fugitive Slave Acts, drafts, the Civil War, segregation (remember segregation was ruled legal by the SCOTUS originally and thus legalized across the country), state sanction eugenics and sterilization programs, Federal seizure of gold, fiat currency, the PATRIOT Act, and on and on and on it goes. Neither argument is without blood or oppression, so if the issue is what limits the capability the most of a group of individuals to oppress another, then the "state's rights" construction is much preferable over the idea of complete Federal supremacy.
    +Rep!



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  11. #9
    Quote Originally Posted by The Freethinker View Post
    I am a defender of states' rights, and much of my reasoning for this is based on the Founding Fathers' view that the federal government should be rigorously limited to the powers defined and described in the Constitution, and that other matters, which the Constitution did not address, were to be left up to the states.

    However, there are two areas which have "stumped" me.

    1. My state of NJ has a constitution which does not mention the right of its citizens to bear arms (unlike 40+ of the other 50 states which actually do). This makes it very difficult (among other reasons, such as corrupt police precincts who add requirements on top of state law-mandated requirements) to even purchase a handgun. A CCW permit is essentially impossible to obtain.

    However, if each state has a right to define its own laws, then how can NJ residents fight back? How do we use the Constitution vs. the constitution of NJ?

    2. A liberal/leftist friend of mine says that "states' rights" have been used by many politicians to preserve structures, to enact laws, and to perpetuate practices which were discriminatory: school segregation, racial segregation, no voting for nonwhites, etc. I myself learned that certain states from the former Confederacy later passed specific laws that only "free white men" would have the right to bear arms.

    If the Constitution's principles apply to all people - freedom of speech, right to bear & to keep arms - then how does one answer this quandary of individual states passing laws that contradict Constitutional principles of equality?
    Notice the language of the amendments. The 1st Amendment explicitly limits only the power of the federal government saying, "Congress shall make no law...."

    But the 2nd Amendment is universal, saying, "the right of the people to keep and bear Arms, shall not be infringed."

    Your state legislators were required to take oaths to uphold not only their state constitution, but also the US Constitution.

    Note that this point does not require any appeal to the 14th Amendment.
    Last edited by erowe1; 04-29-2016 at 03:42 PM.

  12. #10
    I was under the impression that a condition of statehood was the requirement to include the bill or rights in the state constitution??
    I just want objectivity on this forum and will point out flawed sources or points of view at my leisure.

    Quote Originally Posted by spudea on 01/15/24
    Trump will win every single state primary by double digits.
    Quote Originally Posted by spudea on 04/20/16
    There won't be a contested convention
    Quote Originally Posted by spudea on 05/30/17
    The shooting of Gabrielle Gifford was blamed on putting a crosshair on a political map. I wonder what event we'll see justified with pictures like this.

  13. #11
    Quote Originally Posted by The Freethinker View Post
    I am a defender of states' rights, and much of my reasoning for this is based on the Founding Fathers' view that the federal government should be rigorously limited to the powers defined and described in the Constitution, and that other matters, which the Constitution did not address, were to be left up to the states.

    However, there are two areas which have "stumped" me.

    1. My state of NJ has a constitution which does not mention the right of its citizens to bear arms (unlike 40+ of the other 50 states which actually do). This makes it very difficult (among other reasons, such as corrupt police precincts who add requirements on top of state law-mandated requirements) to even purchase a handgun. A CCW permit is essentially impossible to obtain.

    However, if each state has a right to define its own laws, then how can NJ residents fight back? How do we use the Constitution vs. the constitution of NJ?

    2. A liberal/leftist friend of mine says that "states' rights" have been used by many politicians to preserve structures, to enact laws, and to perpetuate practices which were discriminatory: school segregation, racial segregation, no voting for nonwhites, etc. I myself learned that certain states from the former Confederacy later passed specific laws that only "free white men" would have the right to bear arms.

    If the Constitution's principles apply to all people - freedom of speech, right to bear & to keep arms - then how does one answer this quandary of individual states passing laws that contradict Constitutional principles of equality?
    There are a couple routes, one I hate and one I like. The one I hate is to argue 14th Incorporation, but it's an easier argument to make. Basically it says that the 14th applies the bill of rights to all Americans by incorporating the enforcement into the States. This is called "Incorporation Doctrine."

    I think there is a better way to get there, and one more fundamentally original.

    "The right of the people to keep and bear arms shall not be infringed" is written differently than the 1st Amendment, which states "Congress shall make no law." It does not distinguish between whether Congress or the State might infringe, it simple says "shall not be infringed." So the impetus is the same whether the infringer is Russia, the Governor, or Congress. This right shall not be infringed. Period. Full Stop. It doesn't say by who, and it's a guarantee written into the US Constitution, therefore the US Government has a duty to enforce it. I would argue has had a duty to enforce it since 1787.

    There are very few things which the Constitution would seem to authorize the federal government to radically enforce against the States. One of them is "a republican form of government," and from the language of the 2nd Amendment, protecting the people's right to keep and bear arms is another. Notwithstanding anything whatever the State wants to do to infringe.

  14. #12
    Quote Originally Posted by GunnyFreedom View Post
    I think there is a better way to get there, and one more fundamentally original.

    "The right of the people to keep and bear arms shall not be infringed" is written differently than the 1st Amendment, which states "Congress shall make no law." It does not distinguish between whether Congress or the State might infringe, it simple says "shall not be infringed." So the impetus is the same whether the infringer is Russia, the Governor, or Congress. This right shall not be infringed. Period. Full Stop. It doesn't say by who, and it's a guarantee written into the US Constitution, therefore the US Government has a duty to enforce it. I would argue has had a duty to enforce it since 1787.
    This argument was tried and rejected in Barron v. City of Baltimore, 32 U.S. 243 (1833), which held that the 5th Amendment's requirement that compensation be paid when private property is taken by the government applied only to Congress, not the States. The opinion cites the history of the adoption of the Bill of Rights in support of its ruling:

    The question thus presented is, we think, of great importance, but not of much difficulty. The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.

    If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.

    The counsel for the plaintiff in error insists, that the constitution was intended to secure the people of the several states against the undue exercise of power by their respective state governments; as well as against that which might be attempted by their general government. It support of this argument he relies on the inhibitions contained in the tenth section of the first article. We think, that section affords a strong, if not a conclusive, argument in support of the opinion already indicated by the court. The preceding section contains restrictions which are obviously intended for the exclusive purpose of restraining the exercise of power by the departments of the general government. Some of them use language applicable only to congress; others are expressed in general terms. The third clause, for example, declares, that 'no bill of attainder or ex post facto law shall be passed.' No language can be more general; yet the demonstration is complete, that it applies solely to the government of the United States. In addition to the general arguments furnished by the instrument itself, some of which have been already suggested, the succeeding section, the avowed purpose of which is to restrain state legislation, contains in terms the very prohibition. It declares, that 'no state shall pass any bill of attainder or ex post facto law.' This provision, then, of the ninth section, however comprehensive its language, contains no restriction on state legislation...

    But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained, that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those unvaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government-not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states. These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.

    We are of opinion, that the provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use, without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states. We are, therefore, of opinion, that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that state, and the constitution of the United States. This court, therefore, has no jurisdiction of the cause, and it is dismissed.
    We have long had death and taxes as the two standards of inevitability. But there are those who believe that death is the preferable of the two. "At least," as one man said, "there's one advantage about death; it doesn't get worse every time Congress meets."
    Erwin N. Griswold

    Taxes: Of life's two certainties, the only one for which you can get an automatic extension.
    Anonymous

  15. #13
    The tenth amendment indicates the US Constitution prohibits powers to the states. Those that it does not prohibit, are reserved to the states or people. So to say the document only restricts federal powers is inaccurate IMO.
    I just want objectivity on this forum and will point out flawed sources or points of view at my leisure.

    Quote Originally Posted by spudea on 01/15/24
    Trump will win every single state primary by double digits.
    Quote Originally Posted by spudea on 04/20/16
    There won't be a contested convention
    Quote Originally Posted by spudea on 05/30/17
    The shooting of Gabrielle Gifford was blamed on putting a crosshair on a political map. I wonder what event we'll see justified with pictures like this.

  16. #14
    Additionally, to graduate from a territory to a state, the state constitution had to be approved by the US Congress. Thus demonstrates Federal power over state constitutions.
    I just want objectivity on this forum and will point out flawed sources or points of view at my leisure.

    Quote Originally Posted by spudea on 01/15/24
    Trump will win every single state primary by double digits.
    Quote Originally Posted by spudea on 04/20/16
    There won't be a contested convention
    Quote Originally Posted by spudea on 05/30/17
    The shooting of Gabrielle Gifford was blamed on putting a crosshair on a political map. I wonder what event we'll see justified with pictures like this.



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