From: cescript@mtu.edu (Charles Scripter)
Subject: Re: ICLU Commission on the 2nd Amendment and Gun Control
Organization: Michigan Technological University
Date: Tue, 1 Sep 1992 22:18:13 GMT

In article <18066eINNkh7@agate.berkeley.edu>, fcrary@ocf.berkeley.edu
(Frank Crary) writes:

> In article <1992Aug31.215736.1867@mtu.edu> cescript@mtu.edu
> (Charles Scripter) writes:
> >I have to question if the States have any more power to control this
> >than the Feds do.  If the Bill of Rights are protections for the
> >Citizens, then neither the Feds, nor the States may "..infringe..".
> >I don't recall hearing that States may seize private property
> >without compensation, or that someone can "...be deprived of life,
> >liberty, or property, without due process of law.." by the States.  
> >Why should they have any additional power w.r.t the 2nd?
> 
> However people have said this with respect to the First Amendment: The
> states can not ban public assembly, but they can require a permit
> for large demonstrations. Further, states can legally declare a 
> state of emergency, or courts can issue an order to disperse, and
> temporarily restrict public assmebly.

The 1st Amendment is probably the weakest of the bunch, starting
with "Congress shall make no law...".

> I think that, as a general rule, the states have a greater degree of
> freedom under the Bill of Rights than does the federal government.

Why should States have more power?  Those rights are guaranteed to
the _individuals_.  The source of encroachment seems quite irrelevant.
The BOR doesn't say "the federal govt shall not...", or "Congress shall
make no law..." (other than the 1st).  They say "The right of the
people...", without mentioning possible sources of infringments.

     "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."

     "The right of the people to be secure in their persons, houses,
     papers, and effects, against unreasonable searches and seizures,
     shall not be violated; ..."

Neither of these mention States or the Feds.  They mention only "The
right of the people...".  I suspect this is one of the prohibitions
mentioned in the 10th Amendment:

     "The powers not delegated to the United States by the Constitution,
     nor prohibited by it to the States, are reserved to the States
     ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
     respectively, or to the people."

And, Article IV, Sect. 2:

     "The Citizens of each State shall be entitled to all Privileges
      and Immunities of Citizens in the several States."

extends the BoR to all Citizens. (and the 14th extends it to all people).

> Further, the Second Amendment says, "shall not be infringed" not
> that the government "shall make no laws respecting" (as in the
> First Amendment.) This might allow for regulations that do not
> "infringe" on the right. For example, the requirement to fill out
> a record of sale when buying a gun is a federal regulation that does
> not really infringe on the right.

OK, perhaps true, but any ban, waiting period, tax, or discretionary
license could easily be construed as an infringement.

infringe: to encroach on the rights of others
(i.e. any law which intrudes upon these rights is an infringment).

> I think it is fairly clear that the states can pass _some_ laws on
> the subject (though the wisdom of such laws is another matter), but they
> cannot pass restrictive or prohibitive laws. Where exactly the line should
> be drawn is _very_ unclear.

When do they "intrude"?  That seems like a reasonable line to me.
(is it intrusive to ask for someone's home address? ;-)

-- 
Charles Scripter   *   cescript@phy.mtu.edu
Dept of Physics, Michigan Technological University, Houghton, MI 49931
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