Originally Posted by
familydog
Today: States are not free to enact such gun control laws. They violate the 14th Amendment.
Tomorrow(?): States are free to enact such abortion laws. They do not violate the 14th Amendment.
I just wish we had actual federalism. If New Yorkers want these laws, more power to them.
The Second Amendment ALWAYS applied to the states!
https://everything.explained.today/Nunn_v._Georgia/
Nunn v. Georgia explained
Nunn v. State, 1 Ga. (1 Kel.) 243 (1846) is a Georgia Supreme Court ruling that a state law ban on handguns was an unconstitutional violation of the Second Amendment. This was the first gun control measure to be overturned on Second Amendment grounds.[1]
Background
In 1837, Georgia passed a law banning the sale and carry of certain types of weapons included Bowie and other types of knives, and pistols. Hawkins H. Nunn was charged and convicted for carrying a pistol in violation of the law.[2] [3] He appealed the ruling, claiming the state law was a violation of the Second Amendment to the United States Constitution. He did not make a claim under the Georgia constitution because Georgia, unlike many other states, did not have a similar protection of the right to bear arms within its constitution.[4] [5]
Ruling
The Nunn court ruled that while the legislature could prohibit the concealed carry of weapons, it could not prohibit the open carry of weapons. To do so would be a violation of the Second Amendment right to carry weapons for self-defense. As there was no proof that Nunn had been carrying his pistol concealed, the conviction was overturned.
Legal analysis
The court relied on guidance from other state decisions and general theories of rights to explain its decision.
Other state courts
The Nunn court referenced Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, 13 Am. Dec. 251 (1822) and State v. Reid, 1 Ala. 612, 35 Am. Dec. 44 (1840). In Bliss, the defendant was charged with carrying a weapon concealed, in violation of a Kentucky statute. The Bliss court invalidated the law as a diminution of the Kentucky constitution which provided, "that the right of the citizens to bear arms in defense of themselves and the State, shall not be questioned." The court reasoned that the right as defined has no limits and "in fact consists of nothing else but the liberty." Any restriction on the right, including the prohibition of concealed carry was a violation of the right.[6]
In contrast the court in Reid upheld a similar ban on concealed carry. The Alabama constitution read, "that every citizen has a right to bear arms in defence of himself and the State." The Reid court held that the law "to suppress the evil practice of carrying weapons secretly," did not violate the Alabama constitution. While the legislature could not prevent the carrying of arms, it did retain the right "to enact laws in regard to the manner in which arms shall be borne." Because the restriction on concealed carry was not a prohibition on the right, it was within the ambit of the legislature to restrict concealed carry.[7]
Fundamental rights
The Nunn court recognized that Reid and Bliss were applying clauses in state constitutions. But, their decisions were relevant to Georgia because the state constitutional protection of the right to keep and bear arms was not a newly given right, but was a recitation of an already existent right.
The court held that the Second Amendment to the United States Constitution protected the rights of Georgia citizens because free people have the right to self-defense. The fact that Georgia did not have a constitutional amendment did not empower the Georgia legislature to infringe on the right. The right is fundamental, and no free society could exist where the right was prohibited.[8]
The court also held that the whole people, not just militia were afforded the right to keep and bear arms. And the type of arms was not restricted only to those borne by the militia but arms of every type and description.
The court's concept of rights meant that other portions of the Bill of Rights would also apply to the States. For example, the court explained that the right to peaceably assemble, protected under the First Amendment, was applicable to both the national and state governments. The court also cited to the New York case of People vs. Goodwin, 18 John. Rep. 200 (N.Y.Sup. 1820) which applied Fifth Amendment double jeopardy prohibitions to New York state court operations. The court explained how to determine which constitutional provisions apply to the state and which applied only the federal government; the relevant question is whether the concepts in the constitution were confined only to the national government or if they could be extended to the states as well. Citing Goodwin:
Modern significance
The Nunn court's decision has continuing relevance to the ongoing debate over gun rights. The Supreme Court in its ruling in Heller v. District of Columbia said Nunn, "...perfectly captured the way in which the operative clause of the Second amendment furthered the purpose announced in the prefatory clause. ... "[9] The Nunn court concept of fundamental rights was relevant to determine whether or not the Second Amendment is a restriction only on the federal government or whether the right to keep and bear arms is a fundamental right that cannot be infringed by the state governments
Note the difference between the first and second amendments to the U.S. Constitution.
First Amendment
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.
Contrast with the Second Amendment.
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.
Note that the first amendment says Congress shall pass no law. The prohibition of infringement of the Second amendment was NOT limited to Congress. So...what happened? The freeing of the slaves. After the U.S. Civil War there was the Cruikshank case were the KKK and a racist Democratic party militia disarmed black freeman and then lynched them. A case was brought against the killers in part for violating the freeman's constitutional rights under the first and second amendments. The U.S. Supreme Court, for the first time ever, interpreted the 2nd amendment as only applying to Congress even though the word "Congress" is NOWHERE to be found in the 2nd amendment.
https://teachingamericanhistory.org/...-v-cruikshank/
The second and tenth counts are equally defective. The right there specified is that of “bearing arms for a lawful purpose.” This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.
Gun control is inherently and perpetually racist and unconstitutional whether it's done at the federal level or the state level. As for abortion, find me any language about abortion in the U.S. constitution and get back with me.
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You SHOULD recognizes that because I freaking said it. Reading is fundamental. There is something in law called binding authority and something called persuasive authority. Nunn v Georgia is persuasive authority because the Georgia Supreme Court interpreted the 2nd Amendment the way people who were alive at the time it was written interpreted it. And you do realize that there is nothing in the wording of the 2nd Amendment to limit it to the federal government the way the word "Congress" limits the 1st Amendment right? Again, reading is fundamental. You should also realize that the U.S. Constitution clearly states that is is the supreme law of the land. Article VI clause 2.
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