CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS

[PEMS2324]

CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS.

Article XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

 

[BOBKATT]

What is "the common defence"? That is the million dollar question.

 

[Dick]

As we should all know by now, the Massachusetts Constitution is regarded by our rulers as a collection of outdated "recommendations" that have no bearing on how they govern their subjects. Because the ruling party is returned to power year after year, the majority of their subjects apparently feel the same way.

 

[Amicus]

What is "the common defence"? That is the million dollar question.

See:

http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/commonwealth_v_davis.txt

This is the "backbone" of the Mass gun control scheme. The applicable portion is:

'It refers to the preference in the first: the declared right to keep and bear arms is that of the people, the aggregate of citizens; the right is related to the common defense; and that in turn points to service in a broadly based, organized militia. Provisions like art. 17 were not directed to guaranteeing individual ownership or possession of weapons. See Salina v. Blaksley, 72 Kan. 230, 231-7232, 83 P. 619 (1905) Burton v. Sills, 53 N.J. 86, 96-97, 248 A.2d 521 (1968). This generalization is perhaps subject to a qualification: Militiamen customarily furnished their own equipment and indeed might be under legal obligation to do so. See United States v. Miller, 307 U.S. 174, 179-181, 59 S.Ct. 816, 83 L.Ed. 1206 (1939); State v. Dawson, 272 N.C. 535, 546, 159 S.E.2d 1 (1968). A law forbidding the keeping by individuals of arms that were used in the militia service might then have interfered with the effectiveness of the militia and thus offended the art. 17 right. But that situation no longer exists; our militia, of which the backbone is the National Guard, is now equipped and supported by public funds. See, e. g., G.L. c. 33, section 101 (payment by Commonwealth for clothing and equipment of units of its military forces). Moreover, the statute at bar is part of a large regulatory scheme to promote the public safety, [footnote 3] and there is nothing to suggest that, even in early times, due regulation of possession or carrying of firearms, short of some sweeping prohibition, would have been thought to be an improper curtailment of individual liberty or to undercut the militia system. [footnote 4] Very generally it has been held that such regulation is compatible with State constitutional provisions on the subject of the right to bear arms. [footnote 5] Our own case of Commonwealth v. Murphy, 166 Mass. 171, 44 N.E. 138 (1896), is to that effect. [footnote 6] It may be noted that some of the State constitutional provisions can be distinguished from our own because they speak of arms for self- defense as well as for defense of the State; even so, a regulatory power is not necessarily excluded.'

Commonwealth v. Davis, 369 Mass. 886 (1976) (emphasis added)

 

[BOBKATT]

See:

http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/commonwealth_v_davis.txt

This is the "backbone" of the Mass gun control scheme. The applicable portion is:

'It refers to the preference in the first: the declared right to keep and bear arms is that of the people, the aggregate of citizens; the right is related to the common defense; and that in turn points to service in a broadly based, organized militia.

Commonwealth v. Davis, 369 Mass. 886 (1976) (emphasis added)

Well with that said, time to find a job in NH.

 

[Amicus]

OTOH, Massachusetts is one of the few states whose gun control schemes may be affected by a decision in Heller. If SCOTUS decides that there is an individual right to keep and bear arms, and that the 2nd Amendment applies to the states, then Davis will be effectively overturned.

Then, predictably, the Commonwealth will take the view that persons with standing shall have to sue to question each and every gun control law. The good news? It can be done in federal court.

 

[jcr]

re: Commonwealth v. Davis

Every circumstance surrounding Comm v Davis was unfortunate for freedom in Massachusetts.

The timing was poor in two ways. It was only a short while after the turmoil of the Sixties. With the assassinations and the urban riots, Congress (and state legislatgures) rushed into place many gun control laws. The academic scholarship on the 2nd Amendment had not yet emerged. In fact, what little there was of it was to provide underpinning for the Sixties legislation, particularly, John Levin's article in the Chicago-Kent Law Review which, it seems, the SJC relied on.

The second timing issue was that anti-gun forces in MA were planning a Handgun Ban referendum vote for November 1976. Do note that the primary reason for any referendum vote is that the issue in question will not pass in the the legislature. The anti-gunners were hoping to whip up enough hysteria among the populace to get the ban. The Massachuetts Supreme Judicial Court took Hubert Davis' as a direct appeal -- just so they could assure the voters that a Yes vote to ban handguns would not be overturned as unconstitutional.

Davis' case was incredibly weak. The SJC would never had taken it, had they not wanted to make a statement. The police had a drug search warrent for Davis and they found a short barreled shotgun. Not a simple shotgun or handgun, but the exact device involved in the US v Miller federal case -- which was being spun since the 1940s as a "collective rights" decision.

Davis initially filed his appeal pro se. Though his lawyer for the original conviction was notified and became involved, I think he had been assigned to defend Davis. There were no organizations funding this appeal.

Note the two cases that the SJC cite for their "no individual right" position. Salina (Kansas) was the first case in US history to make the "collective right" argument -- in 1905. more than 110 years since the BoR was adopted and after many gun rights cases (usually concealed weapons, or Jim Crow laws).

The other case, Burton v Sills out of NJ would be a joke, it it was funny. From this ode to statism we get "Only in a very limited sense is a person free to do as he pleases in our modern American society. Regulation by the government is the price we pay for living in an organized community."

The SJC seemed to not be interested in any contrary opinions enough to even mention them.

 

[jcr]

re: Article 17

I'm repeating myself here, but I'm intentionally pushing this idea.

John Adams is the author of the MA Constitution and its included Declaration of Rights. He wrote it in 1780. just 4 years after the Declaration of Independence, and years before the US Constitution. It was a time when everybody in America thought it wrong for any government to infringe the right to keep and bear arms.

I say that Article 17 was written to extend the rights of the people that were stated in Article 1. Article 17 says that people can group together, with arms, for the common defense -- this is beyond self defense rights mentioned in article 1 (for which arms would be required):

Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

 

[matt1956]

the biggest part of this is the fact that the National Guard IS NOT militia. the national guard IS the military.

the point of the word MILITIA is a force comprised of the citizens, NOT REGULAR ARMY (armed forces). "because standing armies can be dangerous" to our freedom

the problem is the fact that society has twisted the word militia into meaning national guard (to suit thier needs)

 

[BOBKATT]

Does a state's constitution have more authority then the U.S. constitution?

 

[Arioch]

Does a state's constitution have more authority then the U.S. constitution?

The SJC in Massachusetts has often taken the approach that since the Massachusetts constitution pre-dates the US constitution, it can take legal precedence over the US constitution in cases where it (MA) grants additional protections or individual liberties. This poses an interesting point in the case of the Massachsetts constitution denying a liberty granted buy the US constitution. Any thoughts from the gentlemen of the bar on this?

 

[matt1956]

A state constitution CAN NOT take away a right that is granted under the US Constitution. Regardless of what MA "says" about the Age of the MA Constitution, as part of being ratified as a state, it agreed that the US constitution superceeds the state.

State Constituiton can not make illegal something that is a right under the US Constitution.

therefor, if it is ruled that the second IS an INDIVIDUAL right under the US Constitution. then the MA ruling is in effect, overtured. of course someone still needs to challenge it. But the state would be absolutely stupid (not that they wouldnt) to say that the MA is over the US... because then any case would eventually end up at the fed and overturned thus calling all the MA justices in to question... therefor likely preventing them from ever getting a seat on the SCOTUS.

Additionally, if they further rule that restrictions on types of firearms is also illegal, that basically kicks out the list.. but again, everything will need to be challenged.

 

[Amicus]

Does a state's constitution have more authority then the U.S. constitution?

No. In the case of a direct conflict, federal law and the Constitution prevail. The key here is "direct conflict."

 

[BOBKATT]

Thanks for the input. It looks like we can hold on to a little bit of hope that a ruling on Heller in our favor will help us preserve our rights. Theres so many differen't ways that SCOTUS can rule on the case that we really just have to wait until they come out before we can make any claims as to how that will affect us in MA.

 

[matt1956]

pretty much

 

[jcr]

if it is ruled that the second IS an INDIVIDUAL right under the US Constitution. then the MA ruling is in effect, overtured.

Mostly wrong here.

When Heller deterimines and individual right, it will not address incorporation of the 2nd under the 14th amendment. We need that to happen so that the the 2nd's rights are protected from state government infringement.

Incorporation should win, but it will be a separte case.

 

[matt1956]

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I'm assuming you mean this part.

I still have to dissagree with you though. I clearly understand your point though... However, if they rule that the second IS and individual right. Then the prior ruling in MA that it is not an individual right would be deemed wrong. it would still take (as I said) someone actually challinging this to make it so. BECAUSE under the 14th (portion above)

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

&

nor deny to any person within its jurisdiction the equal protection of the laws

So yes, I agree that this is the point that will need to be pressed when the case is ruled as an individual right. But again, as I said, would still need to be challenged.

 

[jcr]

Yeah, you missed the "memo".

In the racist Supreme Court case, Cruikshank, they decided that "privileges or immunities" doesn't mean what everyone (including the Congress that passed it) thinks it means.

In order to allow Klan members to get away with multiple murders in Louisiana, they had to define "privileges or immunities" to mean only things that were invented by the Constitution. Pre-existing rights were declared exempt from the 14th Amendment.

It was a sad time.

And it required the subterfudge of "substantive due process" applied piecemeal over 80 or so years to enforce most of the BoR -- and enforcing the BoR was what Congress in 1868 had intended.

 

[BOBKATT]

Yeah, you missed the "memo".

In the racist Supreme Court case, Cruikshank, they decided that "privileges or immunities" doesn't mean what everyone (including the Congress that passed it) thinks it means.

In order to allow Klan members to get away with multiple murders in Louisiana, they had to define "privileges or immunities" to mean only things that were invented by the Constitution. Pre-existing rights were declared exempt from the 14th Amendment.

It was a sad time.

And it required the subterfudge of "substantive due process" applied piecemeal over 80 or so years to enforce most of the BoR -- and enforcing the BoR was what Congress in 1868 had intended.

So the slaughterhouse case basically means that your federal constitutional rights aren't guaranteed unless they exists in you states constitution? And therefore if you live in MA you have no 2A rights?

 

[jcr]

So the slaughterhouse case basically means that your federal constitutional rights aren't guaranteed unless they exists in you states constitution? And therefore if you live in MA you have no 2A rights?

There's a lot of imprecision in this statement, and law is all about specifics.

The Slaugherhouse Cases were a precursor to Cruikshank. The "pre-existing" rights reference were not state constitutional rights, they were what are usually referred to as "god given rights".

In MA now, you do not have a right to keep and bear arms. The SJC said so. The MA legislature can pass any anti-gun law that gets through the process. Such a law would not violate the federal 2nd Amendment protection of the right to keep and bear arms either, because the Supreme Court has never said that the 2nd Amendment restriicts state legislation.

I disagree with this state of affairs, but that's how it stands.

 

[BOBKATT]

There's a lot of imprecision in this statement, and law is all about specifics.

The Slaugherhouse Cases were a precursor to Cruikshank. The "pre-existing" rights reference were not state constitutional rights, they were what are usually referred to as "god given rights".

In MA now, you do not have a right to keep and bear arms. The SJC said so. The MA legislature can pass any anti-gun law that gets through the process. Such a law would not violate the federal 2nd Amendment protection of the right to keep and bear arms either, because the Supreme Court has never said that the 2nd Amendment restriicts state legislation.

I disagree with this state of affairs, but that's how it stands.

I don't have a background or education in law but I wish I did. I'm sorry but I still do not understand why the federal constitution says that I have a right but the state can say that I do not.

 

[Gabe]

I don't have a background or education in law but I wish I did. I'm sorry but I still do not understand why the federal constitution says that I have a right but the state can say that I do not.

RKG explained this one really well a short time ago in another thread. Basically, rights are always protections from particular government bodies, and in the case of the Constitution's Bill of Rights, they are, and were originally, rights protecting United States citizens from the federal government. The 2A therefore had nothing to say about state or local legislatures or authorities, only about the United States Congress and authorities. Incorporation of a right would render that Constitutional right binding on states and localities as much as the feds, but until that occurs, the BoR only limits the federal government. Theoretically, of course (after all, there are a number of 2A infringements on the books at the federal level).

 

[BOBKATT]

RKG explained this one really well a short time ago in another thread. Basically, rights are always protections from particular government bodies, and in the case of the Constitution's Bill of Rights, they are, and were originally, rights protecting United States citizens from the federal government. The 2A therefore had nothing to say about state or local legislatures or authorities, only about the United States Congress and authorities. Incorporation of a right would render that Constitutional right binding on states and localities as much as the feds, but until that occurs, the BoR only limits the federal government. Theoretically, of course (after all, there are a number of 2A infringements on the books at the federal level).

Thanks Gabe and RKG, that actually was the missing piece or analogy that I apparently needed to understand this all. I am happy that I better understand it, but I am afraid that I now better understand why Heller might not help.

 

[Baystatesuks]

The SJC in Massachusetts has often taken the approach that since the Massachusetts constitution pre-dates the US constitution, it can take legal precedence over the US constitution in cases where it (MA) grants additional protections or individual liberties. This poses an interesting point in the case of the Massachsetts constitution denying a liberty granted buy the US constitution. Any thoughts from the gentlemen of the bar on this?

Along these same lines, when you are sworn into the bar in MA, you first take an oath to support the MA constitution, and then take an oath to support the US constitution. Ordering is important to them.

 

[Baystatesuks]

There's a lot of imprecision in this statement, and law is all about specifics.

The Slaugherhouse Cases were a precursor to Cruikshank. The "pre-existing" rights reference were not state constitutional rights, they were what are usually referred to as "god given rights".

In MA now, you do not have a right to keep and bear arms. The SJC said so. The MA legislature can pass any anti-gun law that gets through the process. Such a law would not violate the federal 2nd Amendment protection of the right to keep and bear arms either, because the Supreme Court has never said that the 2nd Amendment restriicts state legislation.

I disagree with this state of affairs, but that's how it stands.

I agree with all of this. However, this does not mean that the U.S. Congress could not pass legislation exclusively regulating buying and possession of guns through interstate commerce clause, dormant commerce clause and other provisions they have relied on to pass everything in the past.

It would benefit us MA prisoners but would harm many others in free states like NH.

 

[BOBKATT]

If SCOTUS rules in the Heller case that the individual has the right to keep and bear arms because of the 2A, then how can that help us here in MA where we don't have the right to keep and bear arms under our state's constitution?

 

[Baystatesuks]

If SCOTUS rules in the Heller case that the individual has the right to keep and bear arms because of the 2A, then how can that help us here in MA where we don't have the right to keep and bear arms under our state's constitution?

I believe that one would argue that 2A does apply to the states through the 14th amendment (as has been done before in many other cases to force states to recognize the bill of rights).

Theoretically, it should be true; I am just not sure that specific issue has ever been dealt with by SCOTUS. So, another court case must follow.

 

[BOBKATT]

I believe that one would argue that 2A does apply to the states through the 14th amendment (as has been done before in many other cases to force states to recognize the bill of rights).

Theoretically, it should be true; I am just not sure that specific issue has ever been dealt with by SCOTUS. So, another court case must follow.

Alright, I just got confused even more, I thought I had it. But I was thinking that the 14th amendment is what blew our chances for the bill of rights helping us out.

In fairness to this forum, I would like to thank those who have tried to help me better understand this issue, and I am going to do my homework and research this subject more extensively before posting on it. Else, I fear you will all prematurely go bald from tearing your hair out, trying to educate me.

 

[Baystatesuks]

Alright, I just got confused even more, I thought I had it. But I was thinking that the 14th amendment is what blew our chances for the bill of rights helping us out.

In fairness to this forum, I would like to thank those who have tried to help me better understand this issue, and I am going to do my homework and research this subject more extensively before posting on it. Else, I fear you will all prematurely go bald from tearing your hair out, trying to educate me.

When confused go to wikipedia:

http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution

"While it has not been fully implemented, the doctrine of Incorporation has thus been used to ensure, through the unwieldy and unexpected means of the Due Process Clause instead of the Privileges or Immunities Clause, the application of nearly all of the rights explicitly enumerated in the Bill of Rights to the states. As a result, the Fourteenth Amendment not only empowered the federal courts to intervene in this area to enforce the guarantee of due process and the equal protection of the laws but to import the substantive rights of free speech, freedom of religion, protection from unreasonable searches and cruel and unusual punishment, and other limitations on governmental power. At the present, the Supreme Court has held that the Due Process Clause incorporates all of the substantive protections of the First, Fourth, Sixth, and Eighth Amendments and all of the Fifth Amendment other than the requirement that any criminal prosecution must follow a grand jury indictment, but none of the provisions of the Seventh Amendment relating to civil trials. Thus, the Court has also greatly expanded the reach of procedural due process, requiring some sort of hearing before the government may terminate civil service employees, expel a student from public school, or cut off a welfare recipient's benefits."

 

[Gabe]

Alright, I just got confused even more, I thought I had it. But I was thinking that the 14th amendment is what blew our chances for the bill of rights helping us out.

In fairness to this forum, I would like to thank those who have tried to help me better understand this issue, and I am going to do my homework and research this subject more extensively before posting on it. Else, I fear you will all prematurely go bald from tearing your hair out, trying to educate me.

Try this link out, Barron v. Baltimore. Notice right at the beginning the line:

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.

The balance of the opinion expounds the many reasons supporting this somewhat surprising assertion.